Page No.# 1/ vs Md. Samiqul Hussain
2025 Latest Caselaw 491 Gua

Gauhati High Court

Page No.# 1/ vs Md. Samiqul Hussain on 14 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                            Page No.# 1/11

GAHC010198662024




                                                                    2025:GAU-AS:6011

                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP(IO)/369/2024

         THE CHIEF EXECUTIVE OFFICER GTL INFRASTRUCTURE LIMITED AND
         ANR
         REGD. OFFICE GLOBAL VISION, ELECTRONIC SADAN II, MIDC TTC
         INDUSTRIAL AREA, MAHAPE NAVI MUMBAI, MAHARASTHRA 400710

         2: THE BRANCH MANAGER

          MAYUR GARDEN
          3RD FLOOR
          OPP. RAJIV BHAWAN
          BHANGAGARH
          GS ROAD
          GUWAHATI KAMRUP M ASSAM 78100

         VERSUS

         MD. SAMIQUL HUSSAIN
         S/O LATE ASGAR HUSSAIN,
         RESIDENT OF TOWN BANTOW, WARD NO. 14, NORTH LAKHIMPUR TOWN,
         PO AND PS NORTH LAKHIMPUR, DIST LAKHIMPUR ,ASSAM 787023



              For the Petitioner(s)        : Mr. R. Sarmah, Advocate

              For the Respondent(s)        : Mr. S. K. Talukdar, Advocate


                   Date of Hearing         : 14.05.2025

                   Date of Judgment        : 14.05.2025
                                                                           Page No.# 2/11


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. R. Sarmah, the learned counsel appearing on behalf of the petitioners and Mr. S. K. Talukdar, the learned counsel appearing on behalf of the respondent.

2. The supervisory jurisdiction of this Court have been invoked challenging the judgment and order dated 06.01.2024 passed in Miscellaneous Appeal No.02/2023 whereby the said appeal was dismissed thereby affirming the order dated 20.03.2023 passed by the learned Civil Judge (Junior Division) No.1, Lakhimpur, North Lakhimpur in Misc. (J) Case No.52/2022.

3. To ascertain the dispute involved, this Court finds it relevant to take note of the facts which led to the filing of the instant proceedings.

4. The respondent herein as plaintiff had filed a suit against the petitioners herein who were the defendants. The said suit was registered and numbered as Title Suit No.5/2020 before the Court of the learned Civil Judge, Lakhimpur at North Lakhimpur seeking a decree for eviction against the defendants; recovery of khas possession of the suit property from the defendants in favour of the plaintiff as well as for a decree for mesne profit at the rate of Rs.300/- only per diem against the defendants since the 11.09.2019 till recovery of the possession of the suit property from the defendants.

5. It is very relevant to take note of that from a perusal of the plaint, it Page No.# 3/11

appears that the suit property is situated within the Lakhimpur Town and would come within the purview of the Assam Urban Area Rent Control Act, 1972 (for short 'Act of 1972') in terms with Section 2(g) of the Act of 1972.

6. A perusal of the plaint reveals that the plaintiff had entered into a lease agreement with one M/S Dishnet Wireless Ltd. dated 10.08.2007 thereby leasing out the property as described the Schedule to the plaint. It was alleged in the plaint that the said M/S Dishnet Wireless Ltd. was taken over by the M/S GTL Infrastructure Ltd. and the said company continued to remain as a tenant of the plaintiff. The plaintiff alleged that that the defendants in the suit were defaulter in payment of rent and further, the defendants are liable to be also evicted in terms of section 5(1)(a) of the Act of 1972 which pertains to violation of the provisions of Sub-Sections (m), (o) and (p) of Section 108 of the Transfer Property Act, 1882.

7. The defendants appeared in the suit and filed an application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 (for short "the Act of 1996') which was registered and numbered as Misc. Case No. 52/2022.

8. In view of the change in the pecuniary jurisdiction of the Court on account of the amendment to the Bengal, Agra, Assam Civil Courts Act, 1887, the suit was transferred to the Court of the learned Civil Judge (Junior Division) No.1, Lakhimpur at North Lakhimpur (for short 'the learned Trial Court') and the suit was re-numbered as Title Suit No. 44/2020.

9. The plaintiff filed his written objection to the application filed under Sections 5 and 8 of the Act of 1996. The learned Trial Court i.e. the Court of Page No.# 4/11

the learned Civil Judge (Junior Division) No.1, Lakhimpur at North Lakhimpur vide an order dated 20.03.2023 dismissed the said application filed under Section 8 of the Act of 1996 on the ground that as the lease was for the period from 12 years i.e. from 10.08.2007 and 11.08.2007 and the lease expired on 10.08.2019 and 11.08.2019 respectively. The learned Trial Court opined that as there was nothing on record to show that lease agreement or the license agreement were renewed and the suit having been instituted after the period of the expiry of the lease agreement and the license agreement for eviction of the tenant and for mesne profit, the Civil Court had the jurisdiction to decide the dispute and accordingly the said application under Section 8 of the Act of 1996 was dismissed.

10. Being aggrieved, the petitioners herein preferred an Appeal under Section 37(1)(a) of the Act of 1996 before the Court of the Civil Judge, (Senior Division), Lakhimpur at North Lakhimpur. The Appeal was registered and numbered as Misc. Appeal No.02/2023.

11. The learned Court of the Civil Judge (Senior Division), Lakhimpur (hereinafter referred to as 'the learned First Appellate Court) vide an order date is 06.01.2024 dismissed the said appeal. The learned First Appellate Court opined that for referring the parties to arbitration under Section 8 of the Act of 1996, the standard of scrutiny to examine the non-arbitrability of a claim by the Reference Court is only prima facie. It was observed that the Reference Court has to confine to only a first review and the Court has to prima facie find that the valid arbitration agreement exists.

The learned First Appellate Court further upon taking note of the agreements dated 10.08.2007 and 11.08.2007 opined that the term of the Page No.# 5/11

lease and license were for a period of 12 years which expired on 10.08.2019 and 11.08.2019 and thereafter, there being no renewal of the agreements on record observed that the cumulative fallout of the same was that the arbitration clause in the expired/terminated lease agreement cannot be said to be either existent or valid. Accordingly, the learned First Appellate Court affirmed the said order. It is under such circumstances, the present proceedings has been filed by invoking the supervisory jurisdiction under Article 227 of the Constitution.

12. This Court has duly heard the learned counsels appearing on behalf of the petitioners as well as the respondent at length and has also perused the materials on record.

13. At this stage, this Court finds it very apt to observe that the Act of 1996 is a self-contained code in itself. The jurisdiction under Article 227 of the Constitution in matters arising from appeals under Section 37 of the Act of 1996 is far more limited and it is only when such orders and judgments are passed which shocks the conscious of this Court supervisory jurisdiction would be permissible.

14. In the backdrop of the above, let this Court now take note of the dispute and as to whether this Court is required to exercise the supervisory jurisdiction.

15. This Court upon perusal of the materials on record finds no good reason to exercise its supervisory jurisdiction for the following reasons.

First, the arbitration clause upon which the petitioners seek for arbitration is contained at Clause 7.2 of the lease agreement dated Page No.# 6/11

10.08.2007. A perusal of the said lease agreement would show that the agreement is for a period of 12 years. Neither the lease agreement is adequately stamped as required under law nor the agreement is registered. At this stage, this Court finds it relevant to refer to the Constitution Bench judgment of the Supreme Court rendered in the case of N.N. Global Mercantile Private Limited Vs. Indo Unique Flame Ltd. and Others reported in

(2023) 7 SCC 1 wherein the Supreme Court was dealing with the question as

to whether an unstamped agreement or inadequately stamped can be taken into consideration for the purpose of the resolution of the dispute through the arbitration clause contained therein. The majority opinion rendered by His Lordship K. M. Joseph, J (as His Lordship then was) at paragraph No.162 reads as follows:

"162. An instrument, which is exigible to stamp duty, may contain an arbitration clause and which is not stamped, cannot be said to be a contract, which is enforceable in law within the meaning of Section 2(h) of the Contract Act and is not enforceable under Section 2(g) of the Contract Act. An unstamped instrument, when it is required to be stamped, being not a contract and not enforceable in law, cannot, therefore, exist in law. Therefore, we approve of paras 22 and 29 of Garware. To this extent, we also approve of Vidya Drolia, insofar as the reasoning in paras 22 and 29 of Garware is approved."

The concurring opinion of His Lordship C.T. Ravikumar, J ( as His Lordship then was) at paragraph Nos. 180, 181, 182 and 193 being relevant is reproduced herein under:

"180. I have already found that receiving the very "instrument" which is carrying the arbitration agreement or containing an arbitration clause Page No.# 7/11

from the party who asserts its existence is essentially an act of receiving the evidence, in that limited sense. Therefore, how can the Court, which is having authority and competence to receive evidence, for the purpose of invoking the power under Section 11(6), abstain from proceeding further in terms of Section 33 if it appears to it that such instrument produced before it, though required to be stamped, is unstamped or is not duly stamped.

181. According to me, in terms of the mandate under sub-section (2) of Section 33, for that purpose, the Section 11 Judge who received evidence shall "examine" the instrument so chargeable and so produced in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India, when such instrument was executed or first executed. Proviso (b) which is extracted hereinbefore, would only permit a Judge of the High Court for delegation of the duty of examining and impounding any such instrument to such officer as the Court may appoint in that behalf. Thus, it only gives discretion to a Judge of the High Court to delegate the duty of examining and impounding any such instrument in the manner mentioned under the said proviso if he chooses not to proceed in the manner provided for impounding the instrument in accordance with the relevant provision, by himself. When that be the provision under Sections 33(1) and (2), a conjoint reading of which obviously makes it mandatory for the Court exercising the power under Section 11(6) to proceed in terms of the mandate under Section 33 when the circumstances legally invite its invocation. A contra view, according to me, would render sub-section (2) of Section 33 and proviso (b) redundant and would defeat the very soul of the provisions as relates their application in respect of application filed under Section 11(6) of the Act.

182. The bar under Section 35 of the Stamp Act on admission of Page No.# 8/11

instruments not duly stamped in evidence, as is evident from proviso (a) to it, is not permanent and is curable by following procedures provided thereunder and making an endorsement as provided under Section 42(1) of the Stamp Act. Sub-section (2) of Section 42 makes it clear that every such instrument so endorsed shall thereupon be admissible in evidence and be acted upon and authenticated as it had been duly stamped. The upshot of the discussion is that being unstamped or insufficiently stamped, the agreement would not be available to be "admitted in evidence" and "to be acted upon", till it is validated following the procedures prescribed under the provisions of the Stamp Act and till then, it would not exist "in law".

193. The learned Brother K.M. Joseph, J. after explaining as to how the expression "certified copy" must be understood, held that the Court exercising the power under Section 11(6) has to exercise the power under Section 33 of the Stamp Act when the original is produced before the Court. In other words, according to me, it is rightfully held that when the original document carrying the arbitration clause is produced and if it is found that it is unstamped or insufficiently stamped, the Court acting under Section 11 is duty-bound to act under Section 33 of the Stamp Act as held in the draft judgment."

16. From the above paragraphs, it would be seen that an agreement containing an arbitration clause which is not stamped or insufficiently stamped cannot be used for the purpose of Section 11 of the Act of 1996. In the opinion of this Court, the same logic also applies in the respect to an application filed under Section 8 of the Act of 1996.

17. This Court further finds it relevant to observe that the application filed by the petitioners was accompanied by a photocopy of the lease agreement. Neither the original nor a certified copy was enclosed. The learned counsel Page No.# 9/11

appearing on behalf of the petitioners submitted that as the plaintiff had relied upon the said document at the time of filing the plaint, there was no requirement for producing the original. In the opinion of this Court, non- producing the original agreement is fatal for the reasons stated hereinafter.

18. Now, let this Court deal with the lease agreement. The period of the lease was 12 years and as such, the lease agreement not only is required to be registered but also the stamp duty which is required to be paid is much more than Rs.10/-. As such, the agreement containing the arbitration clause was insufficiently stamped. Being a photocopy of the lease agreement which was filed, the said lease agreement cannot also be acted upon under Section 42 of the Indian Stamp Act, 1899 and as such, the said lease agreement could not have been taken into consideration while deciding an application under Section 8 of the Act of 1996.

19. Secondly, the dispute in question squarely falls within the purview of the Act of 1972 which is a Rent Control Legislation. Taking into account the judgment of the Supreme Court in the case of Suresh Shah Vs. Hipad Technology India Private Ltd. reported in (2021) 1 SCC 529, the dispute in

question is not arbitrable as the Act of 1972 would be applicable. Paragraph Nos. 18 and 19 of the said judgment are reproduced herein under:

"18. On the other hand, the disputes arising under the Rent Acts will have to be looked at from a different viewpoint and therefore not arbitrable in those cases. This is for the reason that notwithstanding the terms and conditions entered into between the landlord and tenant to regulate the tenancy, if the eviction or tenancy is governed by a special statute, namely, the Rent Act the premises being amenable to the provisions of the Act would also provide statutory protection against Page No.# 10/11

eviction and the courts specified in the Act alone will be conferred jurisdiction to order eviction or to resolve such other disputes. In such proceedings under special statutes the issue to be considered by the jurisdictional court is not merely the terms and conditions entered into between the landlord and tenant but also other aspects such as the bona fide requirement, comparative hardship, etc. even if the case for eviction is made out. In such circumstance, the court having jurisdiction alone can advert into all these aspects as a statutory requirement and, therefore, such cases are not arbitrable. As indicated above, the same is not the position in matters relating to the lease/tenancy which are not governed under the special statutes but under the TP Act.

19. In the backdrop of the above discussion, we are of the considered view that insofar as eviction or tenancy relating to matters governed by special statutes where the tenant enjoys statutory protection against eviction whereunder the court/forum is specified and conferred jurisdiction under the statute alone can adjudicate such matters. Hence, in such cases the dispute is non-arbitrable. If the special statutes do not apply to the premises/property and the lease/tenancy created thereunder as on the date when the cause of action arises to seek for eviction or such other relief and in such transaction if the parties are governed by an arbitration clause; the dispute between the parties is arbitrable and there shall be no impediment whatsoever to invoke the arbitration clause. This view is fortified by the opinion expressed by the coordinate Bench while answering the reference made in Vidya Drolia wherein the view taken in Himangni Enterprises is overruled."

20. Accordingly, this Court finds no ground for interference for which the instant petition stands dismissed. Taking into consideration that the petitioners have abused the process of the Court by delaying a simple landlord tenant dispute, this Court imposes a cost of Rs.25,000/- which the Page No.# 11/11

petitioners are directed to deposit before the learned Trial Court on the next date as mentioned herein below. The respondent/plaintiff shall be at liberty to file application before the learned Trial Court for release of the said amount and the learned Trial Court shall pass appropriate orders.

21. The interim order so passed by this Court on 23.09.2024 stands vacated and the parties who are duly represented before this Court are directed to appear before the learned Trial Court on 26.05.2025 for further proceedings of the suit.

JUDGE

Comparing Assistant