Disputes arising out of the Transfer of Property Act cannot be referred to arbitration.

1. This revisional application is directed against Order no. 19 dated 12th March 2014, passed by the learned Civil Judge (Senior Division), 2nd Court, Barasat, in Title Suit No. 128 of 2012, by which an application under Sections 5 and 8 of the Arbitration and Concilliation Act, 1996, is rejected.

2. The plaintiff/opposite party filed a suit for recovery of possession on the ground of expiration of the period indicated in the notice under Section 106 of the Transfer of Property Act.

3. The premises in question was given to the petitioner on the basis of an agreement styled as ‘Licence Agreement’. The terms and conditions embodied in the said agreement would evince, which is also manifest from the conduct of the plaintiff/opposite party, that the parties indicated to demise the said premises for a definite period. Precisely for such reason, the plaintiff/opposite party terminated the said agreement upon issuing a notice under Section 106 of the Transfer of Property Act.

4. Essentially, it is a suit for recovery of possession on one of the grounds enshrined under Section 111 of the Transfer of Property Act.

5. The defendant/petitioner filed an application under Sections 5 and 8 of the Arbitration and Concilliation Act, 1996 for an order to refer the parties to arbitration because of existence of an arbitration clause in the said agreement.

6. It is sought to be contended by the defendant/petitioner that any matter arising from or relating to the said agreement is capable of being adjudicated through private fora and not by public fora.

7. The sole point evolved from the respective stand of the parties is whether a suit for recovery of possession, on any of the grounds enumerated under Section 111 of the Transfer of Property Act, is capable of being adjudicated by an arbitrator.

8. Both the parties have relied upon a judgment of the Apex Court rendered in the case of Booz Allen and Hamilton Inc. -vs- SBI Home Finance Limited. & Others, reported in (2011) 5 SCC 532. The Apex Court, in express terms, held that certain disputes, which are under the Special Act, are not capable of being decided through arbitration. The aforesaid observation can be aptly quoted as under:

“36. The well-recognised examples of non-arbitral disputes are (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, juridical separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) 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 disputes.”

9. According to Mr. Mukherjee, the learned advocate appearing for the defendant/petitioner, matter pertaining to eviction of a monthly tenant, who is otherwise protected under the welfare legislation of the Rent Act, has been kept outside the purview of arbitration agreement but a matter which pertains to recovery of possession, on the ground of revocation of licence under the general law, cannot be said to be beyond the arbitration clause.

10. The terms ‘licence’, ‘lease’ or ‘tenancy’ are some nomenclature used in different context. In order to ascertain the meaning of the expressions used in an agreement, the conduct of the parties, as well as the nature of the terms and conditions, are the relevant factors.

11. Where an agreement is entered between the parties by way of a licence or a lease, conduct of the party is one of the primary factors. It can be evinced with certainty that in the instant case recovery is sought on the basis of the notice issued under Section 106 of the Transfer of Property Act.

12. The aforesaid observation is only illustrative and tentative for the purpose of determinin