I.P. MUKERJI, J.

In the beginning of July 2013, this suit was filed in this court by six trustees of 20 trusts. These trustees, on behalf of the trusts, were jointly the lessees of a single storied building within premises no.24 Park Street, Kolkata-16. The lease by which they held this property empowered them to sub-lease it. A part of this building was let out by the plaintiffs to the defendant on 22nd April 2004 as a monthly tenant. The area covered by the tenancy was 2731 sq. ft. The rent payable was Rs. 1,98,375/- per month together with the tenant’s contribution to municipal rates and taxes.

On 16th May, 2013 the plaintiffs’ advocate issued a 15 days’ notice under Section 106 of the Transfer of Property Act to the defendant asking them to quit, vacate and deliver up vacant possession of the demised property to the trustees after 31st May, 2013, being the date of determination of the tenancy. In fact 15 days from the date of the receipt of the said notice expired with the close of 2nd June, 2013. Possession was not handed over to the plaintiffs.

This suit was filed by the plaintiffs against the defendant asking for their eviction and for vacant and peaceful possession of the property. There is also a claim for mesne profit.

Now, the tenancy agreement between the plaintiffs and the defendant was on Rs. 10/- stamp paper. It was admittedly understamped. It contained an arbitration clause being III (ii). It was in the following terms:

“If any dispute arises howsoever in connection with or arising out of or relating to the interpretation or implementation or purported termination of this Agreement, the parties shall attempt in the first instance to resolve such disputes by friendly consultations. If such dispute is not resolved through friendly consultations within sixty (60) days after commencement of discussions or such longer period as the parties agree to in writing then any party “may” refer the dispute for resolution by arbitration by a sole arbitrator to be appointed jointly by the parties. In case the Lessor and the Lessee are not able to jointly appoint a sole arbitrator then the provisions of the Arbitration and Conciliation Act, 1996 relating to the appointment of Arbitral Tribunal will apply. The arbitration proceedings shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. The language of the arbitration shall be English. The place of arbitration shall be Kolkata. The arbitration award shall be final and binding on the parties and the parties agree to be bound thereby and to act accordingly. When any dispute is under arbitration, except for the matters under dispute, the parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement to the extent practicable.”

On 23rd July, 2013, the defendant entered appearance in the suit. By a Master`s Summons dated 25th July, 2013, the plaintiff took out an application under Chapter XIIIA of the Original Side rules of this Court. On 20th September, 2013, the defendant filed an affidavit in opposition to the said application. In the meantime on or about 10th September, 2013 the defendant filed an application under Order XI rule 11 of the Code of Civil Procedure, which I will discuss in due course. On or about 13th September, 2013 the defendant filed this application under Section 8 of the Arbitration and Conciliation Act contending that all the disputes between the parties in the suit be referred to arbitration and that the suit be permanently stayed.

It is opposed by Mr.Jishnu Saha learned senior advocate for the plaintiffs on several grounds. First of all, he said that the deed of lease was deficiently stamped. Therefore the arbitration clause could not be looked into. Secondly, the use of the word “may” in the arbitration agreement suggests that arbitration was an option and not compulsory. Next, it was contended that the defendant had taken out an Order 7 rule 11 a