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High Court of Judicature at Bombay
G.S. GODBOLE, J.
BNP Paribas Securities India Pvt. Ltd.
Versus
Cable Corporation Of India Ltd.
Arbitration Petition No. 1010 Of 2011
Decided on : 07-05-2012
Presidency Small Cause Courts Act, 1882 - Section 41 - Grant of interim measures. Petitioner, in possession of licensed premises, value of which several times more than claim of security deposit, not entitled to grant of any interim measures.
Presidency Small Cause Courts Act, 1882 - Section 41(1) - Arbitration and Conciliation Act, 1996, Section 9 - Jurisdiction of Civil Court. Relief of interim measures claimed in a petition under Section 9 of Act 1996 pending adjudication for refund of security deposit, is not barred by Section 141(1) of Act. Only if a claim made in Arbitration Petition or Civil Suit falls within the scope of the expressions used in Section 41 then and only in that eventuality jurisdiction of the Civil Court will be barred.
In the present Petition under Section 9 which is filed for interim measures, pending adjudication about the principal relief to the petitioner of refund of security deposit, the relief is obviously not the one covered by sub-section (1) of Section 41. The petitioner is not seeking a recovery of licence fees or charges or rent nor is the petitioner seeking the recovery of possession nor an injunction is sought that the petitioner should not be dispossessed from the licensed premises.
The petitioner is already in possession of the premises and is continuing to be in possession. Whether the act of the petitioner of retaining possession after expiry of the license period is legal act as contended by the petitioner or an illegal act as contended by the respondent is the matter which will be decided by appropriate forum in an appropriate proceedings. The present proceedings or in the proceedings of arbitration which are proposed to be commenced by the petitioner to get relief which is being sought is for refund of the security deposit. On the careful reading of Section 41, this relief is not covered by Section 41. The respondent has already filed a suit for possession and other reliefs including recovery of licence fee and damages etc. against the petitioner in the Small Causes Court.
The petitioner claims that as the security deposit paid by it has not been refunded by the respondent it. entitled to continue with possession of the licenced premises. Being in possession of the premises, the claim of the petitioner is as on today substantially secured. In case is made out for grant of interim measures as prayed for in the petition.
1. Heard learned Advocates for the respective parties at length.
2. By order dated 15th November, 2011 the parties were already put to the notice that the Petition will be disposed off finally at the stage of admission. Accordingly, I have heard the learned Advocates at length.
3. By this Petition filed under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as “the Act”), the Petitioner has sought following interim measures :
(a) That pending the hearing and final disposal of the arbitration proceedings and the making and implementation of the award therein, this Hon'ble Court be pleased to pass an order and injunction restraining the Respondent from in any manner selling and/or transferring and/or alienating and/or encumbering and /or parting with and/or disposing off [and/or disturbing the Petitioner's occupation & possession of ] the said Premises.
(b) That pending the hearing and final disposal of the arbitration proceedings and the making and implementation of the award therein, this Hon'ble Court be pleased to pass a mandatory order and direction against the Respondent to deposit with the Hon'ble court the balance Deposit of Rs. 5,99,11,376 (Rupees Five Crore Ninety Nine Lac Eleven Thousand Three Hundred and Seventy Six only) together with penal interest thereon at the rate of 18% from July 1, 2011 till the date of such deposit;
(c) In the alternative to prayer (b) above, this Hon'ble Court pleased to pass a order and direct the Respondent to secure the aforesaid amount of 5,99,11,376 (Rupees Five Crore Ninety Nine Lac Eleven Thousand Three Hundred & Seventy Six Only) together with interest thereon by furnishing a bank guarantee or such other security as may be deemed appropriate by this Hon'ble Court; and ….”
4. At the time of hearing of the Petition, Mr. Samdani, learned senior Advocate for the Petitioner made a statement that the Petitioner was not seeking any injunction in respect of the bracketed portion of prayer (a) and that prayer was being given up.
5. The Respondent has filed Affidavit-in-Reply and raised objections regarding maintainability of the Arbitration Petition on the ground that by virtue of Section 41 of the Presidency Small Causes Court Act, 1882, the Arbitration Petition under Section 9 is not maintainable in this court and this Court does not have jurisdiction to grant any relief of whatsoever to the Petitioner. In this Judgment I propose to consider the said objection. The Defendants have advanced argument even on the merits of the controversy and I also propose to decide the question on merit after deciding the question of maintainability.
6. The facts which are necessary and which emerge from the pleadings are as under :
(a) It is an admitted position that the Respondent is owner of the premises, admeasuring about 9074 sq. ft. of carpet area located on the 6th floor of BWing in the building known as “Poonam Chambers” at Worli. Admittedly, the Respondent executed a Leave and Licence Agreement dated 26th November, 2008 in favour of the Petitioner in respect of the said premises for a period of 52 months commencing from 1st December, 2008 and expiring on 31st March, 2013. The Agreement provided for lockin period of 28 months, expiring on 31st March, 2011 during which a monthly license fee of Rs.20/lakhs was to be paid. For the balance period of 24 months, the licence fees was to be enhanced to Rs. 23,60,000/per month. A separate Agreement of Amenities was also executed which is on record at Exh. 'B' and various amounts were payable under the said Agreement. A sum of Rs.36 lakhs per month was payable for the first 28 months, excluding the fit out period and for the balance 24 months, a sum of Rs.42,48,000/per month was payable.
7. At this stage it is necessary to reproduce Clauses 6, 7 and 9 of the Leave and License Agreement which read thus :
“6 It is agreed by and between the parties hereto that, subject to Clause 7 below, during the initial 28 mont
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