Madras High Court
M/S. Aditya Birla Fashion And ... vs Mrs. A. Kalarani on 22 February, 2021
OP.No.648 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
OP.No.648 of 2020
M/s. Aditya Birla Fashion and Rentail Limited
Formerly known as
M/s. Pantaloons Fashion & Retail Limited
Mr. Sudarshan
No.701-704, 7th Floor,
Skyline Lcon Business Park,
86-92, Off Andheri Kurla Road,
Marol Vilage, Andheri (East)
Mumbai – 400 059.
...Petitioner
Vs
Mrs. A. Kalarani
... Respondent
Prayer : Original Petition filed under Section 11 of the Arbitration and
Conciliation Act, 1996 to a suitable person be appointed as the sole
Arbitrator in terms of Clause 45 of the Lease Deed dated 29.07.2015
to arbitrate in the disputes and to give his Award.
For Petitioner : M/s. B. Dinesh Kumar
For Respondent : M/s. Pooja Jain
for M/s. Giridhar & Sai
1/8
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OP.No.648 of 2020
ORDER
The above petition is filed for appointing a sole arbitrator in terms of
Clause 45 of the Lease Deed dated 29.07.2015.
2. The case of the petitioner is that they had taken a showroom on
lease admeasuring an extent of 21,169 sq. ft. from the respondent for the
period of 12 years under the registered Lease Deed dated 29.07.2015. A
rental advance of Rs.43,57,276/- was paid and the parties had agreed on the
schedule of rent that would be paid for the entire period of lease. Clause 38
of the Lease Agreement provides 'Force Majeure' clause, which gives a right
to the lessee to terminate the lease and the lessee, from the date of the
termination, is not bound to pay the lease rental and the lessor is obliged to
refund the security deposit.
3. The petitioner would submit that during the pandemic, the
showroom had to be closed on account of the lockdown announced by the
Government. Even after the lockdown had been relaxed, the showroom is
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OP.No.648 of 2020
not earning the requisite income.
4. The petitioner would submit that they had paid the common area
maintenance charges and the water bill on 28.08.2020 and their attempts to
vacate the property has met with a stone wall. The respondent is not coming
forward to refund the security deposit.
5. While the stalemate between the parties existed, the respondent had
issued an email dated 14.09.2020 invoking the arbitration clause, requesting
that an arbitrator be appointed at Salem. A detailed reply was sent by the
petitioner stating that for the purpose of arbitration, the agreement had
stated that the venue shall be at Mumbai and the proceedings should be
conducted in English Language.
6. The petitioner had made a counter offer appointing an Arbitrator at
Mumbai, to this, there was no response. Therefore, the petitioner has come
forward with the above petition.
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OP.No.648 of 2020
7. A counter has been filed by the respondent inter alia contending
that the parties cannot be referred to arbitration, since the appropriate forum
for hearing the dispute is only the Rent Control Court and also taking into
consideration the latest judgment of the Supreme Court reported in “2020
SCC Online SC 1018, in the case of Vidya Drolia vs Durga Trading”, the
Petition filed under Section 11 of the Arbitration and Conciliation Act was
not maintainable.
8. That apart, this allegation made in the counter was denied by the
petitioner.
9. The counsels had also made their submissions and the learned
counsel for the petitioner would submit that the dispute which has arisen
between the petitioner and the respondent is not one that would come under
the jurisdiction of the Rent Control Act. The dispute in the instant case is
only the refusal on the part of the respondent to permit the petitioner to
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OP.No.648 of 2020
vacate and handover the vacant possession of the property and consequently
refund the security deposit. The learned counsel would submit that this
cause of action would not fall within the jurisdiction of the Rent Control
Court.
10. The said argument has not been countenanced by the counsel for
the respondent, however ultimately both parties agreed that the arbitration
shall be conducted at Chennai, in the event of an Arbitrator being appointed.
11. Considering the fact that the dispute involved does not relate to
either fixation of rent, or any of the subject falling within the jurisdiction of
the Rent Control Act, the Court has to only peruse if there is an agreement
between the parties with reference to the procedure that they had agreed for
resolving their disputes. Clause 46 of the Lease Agreement provides for
resolving the disputes through arbitration. The parties are agreeable to the
arbitration being conducted at Chennai.
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OP.No.648 of 2020
12. In these circumstances and in view of the parties having agreed
for the arbitration at Chennai, Mr. K. Hari Shankar, Advocate is appointed
as the arbitrator.
13. Accordingly, it is ordered as follows:
(i) Mr. K. Harishankar, HSB Partners, Capitale, 554-555, Anna Salai,
Teynampet, Chennai - 600 018. Phone- 24355217-18, Cell: 9841076561,
Email: [email protected], is appointed as the Arbitrator to enter upon
reference and adjudicate the disputes inter se the parties.
ii) The learned Arbitrator may, after issuing notice to the parties and
upon hearing them, pass an award as expeditiously as possible, preferably
within a period of six months from the date of receipt of the order. It is open
to the respondent to raise all legal objections as to the validity of contract.
iii) The learned Arbitrator is at liberty to fix his remuneration and
other incidental expenses as per law.
iv) The proceedings may be conducted at the Nani Palkhivala
Arbitration Centre, New D.No.22, Karpagambal Nagar, Mylapore,
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OP.No.648 of 2020
Chennai 600004. The Centre has been recognised as an Institution by
orders of the Hon'ble Chief Justice dated 19.09.2005.
The Original Petition is, accordingly, allowed, leaving the parties to
bear their own costs.
22.02.2021
mrn
Index : Yes/No
Speaking order/non-speaking order
To,
Mr. K. Harishankar, HSB Partners,
Capitale, 554-555, Anna Salai,
Teynampet, Chennai - 600 018,
Phone- 24355217-18,
Cell: 9841076561,
Email: [email protected],
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OP.No.648 of 2020
P.T.ASHA, J.
mrn
OP.No.648 of 2020
22.02.2021
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