Point of Law : Arbitration - Warehouse Development Regulation - In order for trigger of S. 10 to apply the respondent must be a ‘warehouseman’ who has been granted a certificate of registration by the Competent Authority as contemplated under the Act

JUDGMENT :

1. This is an application under Section 9 of the Arbitration and Conciliation Act, 1996. The petitioner seeks interim reliefs primarily restraining the respondent from interfering with its right to lift quantities of tea lying at the godown of the respondent. The respondent on the other hand claims godown charges which the petitioner alleges are exorbitant and not borne out from the agreement between the parties.

2. Admittedly, the petitioner and the respondent have had business dealings since 2008. The parties had entered into an agreement for storage of tea packages of various tea traders in the godown of the respondent on terms and conditions contained in the agreement dated 21 May, 2008. The agreement for storage was subsequently modified in 2017 and 2018. Thereafter, in view on the ongoing pandemic COVID-19 the parties also entered into a supplementary agreement dated 01.07.2020. On 5 May, 2021 the petitioner was served with a demand for Rs.56,02,542/-on account of outstanding storage charges. The demand also stated that the petitioner would not be able to continue its business activities from the premises of the respondent.

3. It is alleged on behalf of the petitioner that save and except a sum of Rs.2,18,417/-on account of storage expenses and Rs.68,470/-on account of electricity no amount is due and payable by the petitioner to the respondent. In any event, the petitioner alleges that the respondent cannot have any right insofar as the tea belonging to the petitioner is concerned. The petitioner further alleges that the demand raised by the respondent is excessive and beyond the scope of the contract entered into by the between the parties. In support of its contentions reliance is placed by the petitioner on inter-alia Sections 160 and 170 of the Indian Contract Act 1872 and the decisions reported in (2008)3 ArbLR 356 and AIR 1990 Allahabad 214.

4. On behalf of the respondent it is contended that the petitioner had notice of the claim of the respondent since 5 May, 2021 but kept quiet and took no action. It is further alleged that the claim of the respondent is in terms of the agreement between the parties. Moreover, it is submitted that under Section 10 of the Warehousing (Development and Regulation) Act, 2007 the respondent has a lien on the goods of the petitioner. Hence, the petitioner is not entitled to any access to the goods until the entire dues of the respondent are paid. The respondent also relies on photographs appearing at pages 20-25 of a list of documents handed over by the petitioner of the packet tea lying at the godown of the respondent which would expire sometime in 2002. It is submitted that the quantities of the tea ought not to be treated as a perishable item and that no protective orders need be passed in respect thereof. The respondent also relies on copies of certificates, licenses and registration granted in its favour. However, it is categorically submitted on behalf of the respondent that the respondent is not a ‘warehouseman’ as defined under Section 2 (v) of the Warehousing (Development and Regulation) Act, 2007. It is also submitted on behalf of the respondent that the respondent does not treat the contract between the parties as one of bailment as defined under the Indian Contract Act, 1872. The respondent also takes the point of jurisdiction and relies on paragraph 56 of the petition to contend that the present dispute is not a ‘commercial dispute’ within the meaning of Commercial Courts Act, 2015.

5. I have heard the parties and considered the submissions made on their behalf.

6. It is an admitted position that there is an arbitration clause contained in the agreement entered into by and between the parties. The parties have had business dealing since 2008. In fact, from a statement of payments annexed to the petition and a ledger account it appears that the petitioner has paid in excess of Rs.70 lacs approximately to the respondent for the financial year ending 1st April, 2020 to