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Karnataka High Court
Ramakrishna Theatre Ltd. - Appellant
Versus
General Investments and Commercial Corpn.Ltd. - Respondent
Decided On : 07-29-03
C.R.P. : 2721 of 2002
ARBITRATION & CONCILIATION ACT, 1996 - Section 8(1) -Arbitration Act, 1940 -Section 40 -Reference to arbitration - validity of -suit filed on 31-5-1995 - application filed, reference to arbitrator sought -revision -upon remand allowed the application on 29-9-2000 -Arbitration and Conciliation Act coming into force on 25-1-1996 -whether the provisions of the new Act are applicable? Yes.
[V. G. Sabhahit, J.] - The Arbitration and Conciliation Act, 1996 which has come into effect on 25.1.1996 has repealed the Arbitration Act, 1940, and while repealing the 1940 Act, the saving clause provides that the provisions of the old Act are applicable to the pending arbitral proceedings. Admittedly, no arbitral proceedings were pending pertaining to the subject matter when the 1996 Act came into force and when the provisions of the Arbitration Act, 1940, have been repealed with effect from 25.1.1996. The question of making an application under Section 34 of the 1940 Act does not arise as the Act itself has been repealed.
Cases Referred : AIR 1997 SC 412
Relied: AIR 1998 Guj 99.
Right to arbitration
ARBITRATION & CONCILIATION ACT, 1996 - Section 8 -Civil Procedure Code, 1908 -Section 115 -Right to arbitration -lease agreement containing arbitration clause -notice for eviction issued -refusal to vacate- notice issued to the tenant to invoke the arbitration clause -petitioner/ tenant denying the application of arbitration clause -suit by landlord -petitioner/tenant filing IA to refer the dispute to arbitration -dismissal of -WP filed -held, the petitioner having waived the right to arbitration cannot be allowed to approbate and reprobate.
[A. V. Srinivasa Reddy, J.] - The real dispute herein is whether the petitioner who had waived his right by taking the stand that the matter is not arbitrable can be permitted in law to turn around and regain the very same right merely on the ground that the conditions stipulated under Section 8 are all satisfied. The stand taken by the petitioner-defendant in the first place while replying to the notice of the respondent-plaintiff disputing the application of the arbitration Act to the dispute between them tantamounts to the waiving of the right to settle the dispute in an arbitration proceeding and a right once waived cannot be allowed to be reclaimed if it would work hardship against the other party. The order passed by the court-below on I.A.No. 2, therefore, does not call for any interference.
Case Referred :
Dismissed: (2000) 4 SCC 539.
( 1 ) THIS revision is filed under S. 115 C. P. C. against the order dated 16-3-2002 passed on I. A. No. 2 in O. S. No. 118/98 on the file of the Addl. Civil Judge (Sr. Dn.), Udupi dismissing I. A. No. 2 filed by the petitioner herein under S. 8 of the Arbitration and Conciliation Act, 1996 requesting the Court to refer the dispute between the parties to arbitration and stay the suit proceedings.
( 2 ) THE plaintiff-respondent filed the suit for delivery of possession of the plaint property on the ground of expiry of the lease period. The plaintiff respondent contended in the suit that immediately on the expiry of the lease period, the plaintiff got issued a notice calling upon the petitioner to hand over possession of the property. The petitioner defendant sent reply notice on 20-3-1998 refusing to hand over possession of the premises. The respondent plaintiff decided to invoke the provisions of arbitration clause contained in the lease deed and as per the amended provision of Arbitration Act, 1996 notified the appellant by registered letter dated 9-4-1998 expressing that the matter should be referred to an Arbitrator for determination. The defendant took up a stand that the plaintiff has no right to refer the dispute to the arbitration as per clause 4 (a) of the registered lease deed and further stated that the present issue is not an arbitrable issue and further stated that Clause 11 (2) of the Arbitration and Conciliation Act, 1996 will not apply. It is under these circumstances the plaintiff respondent has filed the present suit. In the suit the petitioner filed I. A. No. 2 under S. 8 of the Arbitration and Conciliation Act, 1996 for an order to refer the dispute between the parties to arbitration and stay the proceedings in the suit till finality of the arbitration award. The Court dismissed the I. A. No. 2. Being aggrieved, the present revision has been filed by the petitioner defendant.
( 3 ) I have heard the learned counsel on both sides.
( 4 ) CERTAIN undisputed facts of the case are :the petitioner took possession of the premises under a registered lease deed. The lease period under the lease agreement has come to an end. The plaintiff respondent issued notice calling upon the petitioner tenant to hand over possession of the premises. The same was refused by the petitioner. The further notice issued by the plaintiff respondent to subject the dispute to an Arbitrator for determination also has been refused by the petitioner-defendant on the ground that the matter is not arbitrable. It is thereafter that the suit has been filed by the respondent-plaintiff.
( 5 ) IN the light of these undisputed facts, the question that arises for my consideration is whether the court below was right in rejecting I. A. 2 filed by the petitioner-defendant for referring the dispute to an Arbitrator for adjudication.
( 6 ) THE registered lease deed is dated 3-9-1973. The recitals contained in 4 (a) of the said lease deed read as follows :"every dispute, difference or question which may at any time arise between the parties hereto or any person claiming under them, touching or arising out or in respect of this deed or the subject matter thereof shall be referred to arbitration and the provisions of the Indian Arbitration Act, 1940 will be applicable thereto. "the handing over of possession by the petitioner-defendant to the respondent-plaintiff after the expiry of the lease period is certainly a matter touching or arising out or in respect of the registered lease deed. As the handing over of possession of the premises is subject matter of the lease agreement and, therefore, any dispute relating to the handing over of the possession would certainly have to be determined in an arbitration proceedings in terms of clause 4 (a) of the agreement entered into between the parties. Despite the dispute being fully covered by clause 4 (a) of the agreement, the petitioner-defendant played traunt and refused to submit to arbitr
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