The competence of a Civil Court to decide the validity and existence of an arbitration agreement under Section 33 of the Arbitration Act, in the context of a rolled-up contract where the arbitration clause is not severable from the rest of the agreement.

( 1 ) THIS is an application under Sections 10 and 151, C. P. C. for stay of an application taken out by the respondent under Section 33, Arbitration Act. The facts of this case are shortly as follows : the petitioner Indrajit Sinha alleges that there was an agreement between the parties dated 31st March, 1978 whereby the respondent Rathi became a licensee in respect of one room located on the eastern side of the top floor of premises No. 7/1, Lord Sinha Road. The agreement contains certain terms and conditions and Clause 5 of the alleged agreement contains an arbitration clause whereby the parties agreed to refer all the disputes arising out of the said agreement to the sole arbitration of Mr. R. L. Gaggar, Solicitor. This particular agreement also contains one clause, i. e. Clause 3, whereby Rathi is alleged to have agreed to vacate the portion of the room as and when desired by Indrajit Sinha calling upon him to vacate the same either verbally or in writing. Clause 3 of the alleged agreement dated 31st March, 1978 also contains that this clause regarding vacating the premises when called upon to do so by Indrajit Sinha would be applicable to the agreements regarding the garage contained in the letter of 10-9-1977, as also the servant's quarter. On the basis of this agreement, Indrajit Sinha filed a suit in the City Civil Court being Title Suit No. 2124 of 1983 against Rathi for a declaration that the defendant Rathi did not have any right to change the nature and character of the room in suit and the bathroom at the top floor of premises No. 7/1, Lord Sinha Road, permanent injunction against Rathi restraining him from changing the nature and character of the room and the bathroom and from dispossessing Indrajit Sinha or his representative Sri Gopal Chandra Pathak from the said room and the bathroom. The schedule of property in the suit shows that the suit was instituted in respect of one room and the attached bathroom at the top floor of premises No. 7/1, Lord Sinha Road and it did not include the garage or the servant's quarter. This suit was instituted in the City Civil Court on 19-11-1983. During the pendency of the suit, on 30-11-1983 Rathi received a letter dated 28-11-1983 from Mr. R. L. Gaggar intimating him that the disputes covered by the alleged agreement dated 31st March, 1978 were referred to him as the sole arbitrator for adjudication and directing Rathi to appear before him at the meeting to be held on 3rd December, 1983. On 2-12-1983 Rathi took out an application under Section 33, Arbitration Act, challenging the validity and existence of the alleged arbitration agreement dated 31st March, 1978. It is Rathi's case that Indrajit Siaha had entered into a tenancy agreement regarding this room and the bathroom on 31st March, 1978 and each of them had one copy of the said agreement. The Original was lying with Indrajit Sinha. Rathi alleges that Indrajit Sinha had changed the first page of that agreement and has inserted another page in its place, containing different terms and conditions as well as the alleged arbitration clause and is trying to assert his right on the basis of this forged agreement. He prays for a decision regarding the validity and existence of the arbitration agreement in his application under Section 33 of the Act. After this Section 33 application was taken out, I directed Indrajit Sinha to produce the original agreement dated 31st March, 1978 in Court for the purpose of keeping the same in safe custody. One or two extensions were taken by Indrajit Sinha for production but ultimately it was submitted to me by the counsel appearing for Indrajit Sinha that the original agreement was lost somewhere and Indrajit Sinha was not in a position to deposit the original agreement in Court. Thereafter the present application under Sections 10 and 151, C. P. C. has been taken out by Indrajit Sinha for stay of the pending application under Section 33, Arbitration Act.

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