Madras High Court
M/S.Gtl Infrastructure Ltd vs L.Usha on 2 August, 2024
Author: M.Nirmal Kumar
Bench: M. Nirmal Kumar
C.R.P.No.2321 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2024
CORAM:
THE HON'BLE MR.JUSTICE M. NIRMAL KUMAR
C.R.P.No.2321 of 2024
and
C.M.P.No.12196 of 2024
M/s.GTL Infrastructure Ltd.,
Registered office at
Global Vision Electronic Sadan-II,
MIDC TTC Industrial Area,
Mumbai – 400 010. ... Petitioner
Vs.
1.L.Usha
2.P.Ranjith Kumar ... Respondents
PRAYER: Civil Revision Petition has been filed under Article 227 of
Constitution of India, 1950, praying to set aside the order dated 03.02.2024
passed in I.A.No.1 of 2023 in O.S.No.2349 of 2023 on the file of the learned
XV Additional City Civil Court, Chennai and refer the parties to arbitration.
For Petitioner : Mr.C.Sakthimanikandan
For Respondents : Mr.B.Sridhar Bhat
https://www.mhc.tn.gov.in/judis
1/8
C.R.P.No.2321 of 2024
ORDER
This petitioner/defendant in O.S.No.2349 of 2023 filed I.A.No.1 of
2023 seeking to refer O.S.No.2349 of 2023 for arbitration in terms of the
arbitration clause available in the license agreement dated 26.08.2013 and the
same was dismissed by order dated 03.02.2024, against which, the present
revision.
2.The contention of the learned counsel for petitioner is that the
respondents/plaintiffs filed a civil suit in O.S.No.2349 of 2023 seeking a
relief to direct the petitioner to quit and deliver the vacant possession of the
suit schedule property by removing the Cellphone Tower erected by the
petitioner. Further to pay the arrears of rent of Rs.11,31,531/- for the period
from March 2020 to February 2023 and to pay damages.
3.The learned counsel for petitioner submitted that the Lower Court
wrongly interpreted the judgment relied on by the respondents in Booz Allen
and Hamilton Inc. vs. SBI Home Finance Limited and others reported in
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(2011) 5 SCC 532, wherein, non arbitrable disputes are enlisted. The learned
Judge relying to clause (vi) in the judgment, wherein it is held that eviction
can be granted only by specified Courts and not by an Arbitrator, held plaint
filed is for a non arbitrable dispute and dismissed the petition, which is not
proper. The Lower Court wrongly construed that the suit is governed by
special statutes. The Lower Court failed to consider that the present suit not
filed under the tenancy laws before the Rent Tribunal constituted under the
special statute. The Lower Court failed to consider the judgment in Vidya
Drolia and others vs. Durga Trading Corporation reported in (2019) 20 SCC
406, wherein the Hon'ble Apex Court clarified the judgment relied on by the
respondent herein, specifically deals with landlord-tenant disputes arising
under the transfer of property act and are amenable to arbitration, where the
rights of parties involved are in the nature of 'in personam'. Further the Lower
Court failed to consider that the Cellphone Tower was installed in the
respondent's property based on the license deed entered between the parties
and the deed contains an arbitration clause and any issues with respect to the
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Tower has to be referred to arbitration only. The license agreement dated
26.08.2013 annexed to the plaint, in paragraph 16 of the agreement it is
recorded that any dispute or claim between the parties hereto either during its
subsistence or after its termination, shall be referred to the arbitration of a
sole arbitrator in accordance with the provisions of Arbitrations and
Conciliation Act, 1996. The petitioner and respondents being signatory to the
same, it is now for the arbitrator to decide the dispute and not a suit in civil
Court. In support of his contention, the petitioner relied upon the following
judgments:
(i) Booz Allen and Hamilton Inc. vs. SBI Home Finance Limited
and others reported in (2011) 5 SCC 532;
(ii)Vidya Drolia and others vs. Durga Trading Corporation
reported in (2019) 20 SCC 406; and
(iii) Himangni Enterprises vs. Kamaljeet Singh Ahluwalia in
Civil Appeal No.16850 of 2017.
4.He further submitted that in the Vidya Drolia case, doubting the
ruling in Himangni Enterprises case, the Hon'ble Apex Court referred the
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matter to a larger Bench. In such circumstances, the trial Court ought to have
dismissed the suit as having no jurisdiction and directed the parties to pursue
the remedy under Arbitration and Conciliation Act.
5.The learned counsel for the respondents/plaintiffs strongly
opposed contending that the respondents/plaintiff filed a suit for the relief of
delivery of vacant possession of suit property by removing the Cellphone
Tower, recovery of arrears of rent and damages for illegal occupation. The
License Agreement was entered on 26.08.2013 for installation of Cellphone
Tower in the respondents/plaintiff’s property. The petitioner was paying the
rent regularly for some time and thereafter stopped making any payment and
hence, there was a dispute between the petitioner and respondents. Further
the License Agreement got terminated on 22.07.2022 and the agreed license
period is completed. The petitioner refused to enter into fresh license
agreement and as per the License Agreement, the Arbitrator can only pass an
award for recovery of arrears of rent and nothing more. As regards the
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eviction of tenant as held in the case of Booz Allen and Hamilton Inc.,
wherein the Hon'ble Apex Court had listed six kinds of cases of non
arbitrable disputes. The (vi) clause is '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 dispute'. Further in this case the arbitration proceedings
is yet to be initiated, no notice or any such procedure initiated following the
license agreement.
6.Further referring to clause 16 of the License Agreement, he
submitted that it is a unilateral clause which cannot act as a bar to file a civil
suit. Though the case of Vidya Drolia referred to the larger Bench, no
prohibition issued. In view of the same, as on date, the direction in
Himangni Enterprises is still in force. Hence, submitted that the contention
of the petitioner rejected by the trial Court, needs no interference.
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7.Considering the submissions made and on perusal of the material
it is seen that the respondents/plaintiffs filed a suit in O.S.No.2349 of 2023.
The relief sought for in the suit includes delivery of vacant possession, which
is a non-arbitrable dispute. From the License Agreement it is seen that the
agreement entered on 26.08.2013 for a period of 9 years and now that period
elapsed on 22.07.2022. The suit filed on 03.10.2023 after issuance of notice
to the petitioner, but the petitioner not responded to the notice. It is also seen
that the petitioner so far not initiated arbitration proceedings and not paid the
grants as per the License Agreement from November 2017 till February 2023
and the Tower is without any maintenance, causing danger to public safety.
Neither the license amount paid nor the Tower maintained and the petitioner
shown any interest to maintain the Tower and intends to continue with the
license. In such circumstances, now taking recourse to clause 16 of the
License Agreement and seeking dismissal of the suit for the reason that the
matter is a arbitrable one, without initiating any steps in this regard, filing the
I.A.No.1 of 2023 is not proper. The Trial Court rightly rejected the
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M.NIRMAL KUMAR, J.
rsi
petitioner's contention. In view of the above, this Court is not inclined to
entertain this petition.
8.Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
02.08.2024
Index : Yes/No
Internet : Yes/No
Speaking order/Non speaking order
Neutral Citation : Yes/No
rsi
To
The XV Additional Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
