Gauhati High Court
Tapan Das vs M/S Mayasheel Retail India ... on 7 May, 2021
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GAHC010077762021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/38/2021
TAPAN DAS
S/O LATE ARINDRA CH. DAS, R/O HOUSE NO. 13, KALIA THAKUR PATH,
GARCHUK, P.O. GARCHUK, P.S. GARCHUK, GUWAHATI 781035, DIST.
KAMRUP (M), ASSAM.
VERSUS
M/S MAYASHEEL RETAIL INDIA LIMITED (FPRMERLY KNOWN AS
MAYASHEEL RETAIL LLP),
A CO. DULY INCORPORATED UNDER THE COMPANIES ACT 2013 HAVING
ITS REGISTERED OFFICE AT 5709 SUBHASH MOHALLA, GANDHINAGAR,
NEW DELHI 110031 REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI
DEEPAK MONPA, S/O KESANG TSHERING MONPA, R/O SANTI PARA,
WARD NO. 42, SALUGARA, SILIGURI MUNICIPAL CORPORATION,
JALPAIGURI, WEST BENGAL 734008
Advocate for the Petitioner : MR P SHARMAH
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 07.05.2021
The Court proceedings have been conducted through video-conference.
2. Heard Mr. P. Sharmah, learned counsel for the petitioner.
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3. Issue notice, returnable within three weeks.
4. The petitioner shall take steps for service of notice upon the respondent by registered
post with AD. Dasti service is also permitted as well as by email on the
acknowledged/registered email id of the respondent.
5. The present revision petition has been filed being aggrieved by the order dated
03.04.2021 passed by the Ld. Civil Judge (Senior Division), Court No.3, Kamrup (Metro) at
Guwahatii n the Title Suit No.399/2020 filed by the petitioner. The said order was passed
allowing the application filed by the defendant for referring the matter to arbitration in terms
of Clause-17 of the lease agreement dated 01.04.2019.
6. According to learned counsel for the petitioner, the suit has been filed for eviction of
the tenant (defendant-respondent herein) and claiming other reliefs.
7. Learned counsel for the petitioner relying on the decision of the Hon'ble Supreme Court,
in Booz Allen and Hamilton INC vs. SBI Home Finance Limited and others, reported
in (2011)5 SCC 532, submits that being a suit for eviction though tenancy arose out of the
lease agreement dated 01.04.2019 and even if there is a clause for arbitration, the said
arbitration clause cannot be applicable in an eviction suit.
8. In this regard, learned counsel for the petitioner has referred to paragraphs 36 and 37
of the aforesaid decision of Hon'ble Supreme Court, which read as follows:-
"36. The well recognized examples of non-arbitrable disputes are : (i) disputes relating to
rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial
disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody;
(iii) guardianship matters; (iv) insolvency and winding up matters;(v) testamentary matters
(grant of probate, letters of administration and succession certificate); and (vi) eviction or
tenancy matters governed by special statutes where the tenant enjoys statutory protection
against eviction and only the specified courts are conferred jurisdiction to grant eviction or
decide the disputes.
37. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is
a right exercisable against the world at large, as contrasted from a right in personam which is
an interest protected solely against specific individuals. Actions in personam refer to actions
determining the rights and interests of the parties themselves in the subject matter of the case,
whereas actions in rem refer to actions determining the title to property and the rights of the
parties, not merely among themselves but also against all persons at any time claiming an
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interest in that property. Correspondingly, judgment in personam refers to a judgment against a
person as distinguished from a judgment against a thing, right or status and Judgment in rem
refers to a judgment that determines the status or condition of property which operates directly
on the property itself. (Vide : Black's Law Dictionary). "
9. Accordingly, learned counsel for the petitioner submits that this being an eviction suit,
the arbitrator would not have the jurisdiction to decide such a matter relating to eviction.
Learned counsel for the petitioner, drawing attention to Clause-17 of the lease deed dated
01.04.2019, submits that a close perusal of the said arbitration clause will show that the
arbitration clause can be invoked only in the event of any controversy, dispute or difference
arising out of or in connection with or in relation to the agreement and not with an eviction
suit
10. It has been submitted that the present suit filed by the petitioner plaintiff is not
confined only to controversy or dispute or difference arising out of or in relation to the
agreement but the suit is mainly a claim for eviction based on non-payment of rent. He
submits that a claim for eviction goes beyond the scope of the lease agreement. He submits
that though non-payment of rent can be a matter of consideration for arbitration, yet as
regards the claim of eviction, the arbitrator cannot have any such authority to decide the
matter as the same has to be decided in accordance with the provisions of the Assam Urban
Areas Rent Control Act, 1972.
Accordingly, it has been submitted that the impugned order be stayed in the meantime.
11. This Court will examine the scope of paragraph-17 containing the arbitration clause in
the agreement dated 01.04.2019 as regards an eviction suit.
12. In that view of the matter, let notice be issued also on the prayer for staying the
impugned order dated 03.04.2021 passed in Title Suit No.399/2020 by the learned Civil Judge
(Senior Division), Court No.3, Kamrup (M), Guwahati which will be considered upon hearing
the respondent.
However, till then, the aforesaid impugned order dated 03.04.2021 passed in Title Suit
No. 399/2020 by the learned Civil Judge (Senior Division), Court No.3, Kamrup (M), Guwahati
referring the matter for arbitration shall not be acted upon.
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13. List the matter again on 07.06.2021.
JUDGE
Comparing Assistant
