Delhi High Court
Shri Sanjay Saxena vs Sh. K. Sudershan Reddy & Ors. on 28 March, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.146/2012
% 28th March, 2012
SHRI SANJAY SAXENA ..... Appellant
Through : Mr. K.L. Nandwani, Advocate
versus
SH. K. SUDERSHAN REDDY & ORS. ..... Respondents
Through :
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes.
VALMIKI J. MEHTA, J (ORAL)
1. This appeal was argued by one Mr. N.N. Anand, Advocate
when the same came up for admission on 23.3.2012. After arguments, the
said counsel took an adjournment to find out from the appellant whether the
appellant is interested in seeking time to vacate the suit premises. Today, a
new counsel appears. The new counsel for the appellant states that the
appellant wants three years time to vacate the suit premises. I do not think
that interest of justice requires grant of such a long period. I put it to the
counsel for the appellant as to whether the appellant is interested in taking
RFA No.146/2012 Page 1 of 5
six months time to vacate the suit premises but the counsel for the appellant
states that the appellant is not interested in taking six months time to vacate
the suit premises. Since the appeal has already been argued on 23.3.2012, I
am proceeding to pass judgment.
2. The challenge by means of this Regular First Appeal (RFA)
filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment of the trial Court dated 25.2.2012 decreeing the suit of
the respondents/plaintiffs/landlords qua the relief of possession on an
application under Order 12 Rule 6 CPC.
3. In the city of Delhi, tenanted premises whose rent exceeds `
3,500/- per month, and there is no registered lease deed for a fixed period,
then such monthly tenancy can be terminated by means of serving a legal
notice under Section 106 of the Transfer of Property Act, 1882 and
whereafter the tenant has no legal right to stay in possession of the suit
premises.
4. In the present case, the relationship of landlord and tenant is
admitted. Rent of the suit premises is more than ` 3,500/- per month and is
` 40,000/- per month. The lease deed being an unregistered lease deed, the
appellant was a monthly tenant whose tenancy was terminated by means of a
RFA No.146/2012 Page 2 of 5
legal notice dated 22.2.2011 and which is not disputed. I have also in the
recent judgment reported as M/s.Jeevan Diesels & Electricals Ltd. vs. M/s.
Jasbir Singh Chadha (HUF) & Anr. 2011 (182) DLT 402 held that even if
it is not proved that a legal notice was served prior to filing of the suit,
service of summons of the suit can be taken as a notice under Section 106 of
the Act. I have also held in the judgment of M/s.Jeevan Diesels (Supra)
that if along with the plaint, copy of the notice is served on the tenant and
once again, this can be taken as service of notice. The aforesaid aspects can
be taken note of under Order 7 Rule 7 CPC. I have held that Court should
take a pragmatic view in view of the legislative intendment as demonstrated
by Act 3 of 2003, amending Section 106 of the Act. An SLP against the
said judgment being SLP No.15740/2011 has been dismissed by the
Supreme Court on 7.7.2011.
5. Therefore, there were no disputed questions of fact requiring
trial and the suit so far as the relief of possession is concerned, was rightly
decreed.
6. The only dispute raised before the trial Court was that that the
unregistered lease deed between the parties contains an arbitration clause
and therefore the disputes had to be referred to arbitration. I may note that
RFA No.146/2012 Page 3 of 5
the disputes are referred to arbitration, provided there exists a dispute in the
first place. If there are no disputes or no live disputes there does not arise
any issue of referring the matter to the arbitration. The Supreme Court in the
judgments reported as Ramesh Kumar and Anr. Vs. Furu Ram and Anr.
(2011) 8 SCC 613, Major (Retd.) Inder Singh Rekhi Vs. Delhi
Development Authority (1988) 2 SCC 338, Milkfood Ltd. Vs. GMC Ice
Cream (P) Ltd. (2004)7 SCC 288 and Union of India and ors. Vs. Talson
Builders (2008) 14 SCC 502 has held that existence of a dispute is a sine
qua non to refer the matter for arbitration and also the disputes must be live
disputes requiring adjudication. Applying the ratio of the aforesaid cases,
since in the present case there is no disputed question of fact requiring trial,
there is no dispute which requires to be referred to arbitration.
7. I may also note that the Supreme Court in the judgment of
Panchu Gopal Bose Vs. Board of Trustees for Port of Calcutta (1993) 4
SCC 338 dismissed the petition for reference of the disputes to arbitration
when the disputes were ex facie barred by time. In fact, the Supreme Court
in this judgment superseded the arbitration agreement even before reference
of the disputes to the arbitration because reference would have been futile.
No doubt, the said judgment was under the Arbitration Act, 1940, however,
RFA No.146/2012 Page 4 of 5
even under the Arbitration & Conciliation Act, 1996 Courts would have
powers in appropriate cases to supersede the arbitration agreement when
reference to arbitration would be a futility. As per Section 14 of the
Arbitration & Conciliation Act, 1996, the mandate of the Arbitrator shall
terminate when the Arbitrator becomes de jure or de facto unable to perform
his functions. In the present case, the Arbitrator would de facto be unable to
perform his functions as there are no disputes which require adjudication.
Accordingly, I hold that the arbitration agreement would stand superseded so
far as the dispute of possession is concerned.
8. With the aforesaid observations, the appeal being without merit,
is dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J.
MARCH 28, 2012
Ne
