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2025 Supreme(Cal) 320
IN THE HIGH COURT AT CALCUTTA
SHAMPA SARKAR, J.
Ms. Saroj Dey – Petitioner
Versus
Mr. Ashim Ghoshal – Respondent
AP 63 of 2025
Decided On : 18-12-2025
For the Petitioner: Mr. Snehashis Sen, Adv., Mr. Abhishek Banerjee, Adv., Ms. Debasmita Nandi, Adv.
For the Respondent: Mr. Diptomoy Talukder, Adv., Mr. Supriyo Ghosh, Adv.
The referral court's examination under the Arbitration Act is limited to confirming the existence of an arbitration agreement, with substantive disputes reserved for the Arbitral Tribunal's review.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Sections 9, 11 and 8 - Dispute over infrastructure user agreement - Petitioner seeks appointment of an arbitrator due to arrears of user charges and non-eviction of the respondent after contract expiration - Clause 13 of the agreement stipulates arbitration and jurisdiction in Kolkata - Respondent argues civil suit for tenancy issues is ongoing, making arbitration premature. (Paras 2, 5, 10, 11)
(B) Jurisdiction of the referral court - The court's role is limited to ensuring the existence of an arbitration clause; substantive jurisdictional objections should be evaluated by the Arbitral Tribunal - The referral court must not delve into other issues at this stage to facilitate timely arbitration. (Paras 6, 12)
(C) Landlord-tenant disputes are arbitrable - The dispute is concerning unpaid user charges rather than tenancy issues governed by the Transfer of Property Act, indicating arbitrability despite the claim of ongoing civil suit. (Paras 10, 17)
Findings of Court:
The court found that an arbitration clause exists based on the party agreements, thus affirming the referral to arbitration amidst pending civil proceedings.
Issues: The key issues involved whether the ongoing civil suit impacts the arbitration claim and the jurisdiction of the referral court.
Ratio Decidendi: The court established that its inquiry at this stage was strictly limited to confirming the existence of an arbitration agreement, allowing substantive jurisdictional disputes to be reserved for the Arbitral Tribunal's determination.
Result: Petitioner’s application granted; arbitrator appointed.
JUDGMENT :
SHAMPA SARKAR, J.
1. Affidavit in opposition is taken on record. Mr. Banerjee submits that no reply is necessary.
2. The petitioner seeks appointment of an arbitrator to adjudicate the dispute between the parties which arose out of the infrastructure user agreement dated November 25, 2023. Clause 13 of the said agreement deals with settlement of dispute by arbitration and the same is quoted below:-
“13. Any dispute and/or differences arising out of this Agreement shall be referred to the arbitration by a sole arbitrator to be mutually appointed by the parties, whose decision shall be final and binding on both the Parties and such arbitration shall be conducted as per the provisions of the Arbitration and Conciliation Act, 1996 and/or any amendment made thereunder from time to time. The place of arbitration shall be within Kolkata and only the Courts at Kolkata shall have the jurisdiction in the matter.”
3. The petitioner contends that the respondent was granted leave and licence to occupy Flat No.2A measuring a total super built area of 1350 square feet situated on the second floor of the building at Premises No.29, Panditiya Place, Kolkata, for residential purpose. The leave and licence agreement was executed on November 25, 2023. The same was valid for a period of 11 months i.e. from December 1, 2023 till October 31, 2024. Along with the leave and licence agreement, the subject infrastructure user agreement was also executed on November 25, 2023. The said agreement was in respect of use and enjoyment of infrastructure facilities, common areas, car parking space etc. in the ground floor. According to the said user agreement, the respondent was required to pay a monthly charge of Rs.23,000/- and the same was payable in advance within 7th of the current month. Delay in payment would carry an interest of 2% per month. The dispute arose when arrears of the user charges had not been liquidated by the respondent. By a letter dated September 24, 2024, the respondent was called upon to vacate the property and hand over peaceful possession on and from November 1, 2024. The respondent was also called upon to clear all electricity charges for the electricity consumed up to October 31, 2024. It is the specific case of the petitioner that the leave and licence expired by efflux of time on October 31, 2024. The respondent did not vacate the premises. The respondent did not pay the arrear user charges. The petitioner filed an application under Section 9 of the Arbitration and Conciliation Act, 1996, seeking a direction upon the respondent to secure the sum allegedly payable towards the user charges. An ad interim order was passed by the competent court directing the respondent to secure the amount due. The petitioner contends that, as of today, the dues are more than Rs.5 lakh. A notice invoking arbitration was issued on January 24, 2025. The respondent denied the request of the petitioner to refer the dispute to arbitration, on the ground that a civil suit for declaration of tenancy of the respondent,was pending.
4. Mr. Talukder, learned advocate for the respondent, submits that this is not a fit case for reference to arbitration. The dispute involved between the parties is covered by the provisions of the Transfer of Property Act. The petitioner cannot evict the respondent without taking recourse to the Transfer of Property Act. The respondent had already filed a civil suit for declaration of the tenancy in respect of the property in question and for permanent injunction restraining the petitioner from interfering with the respondent’s use and enjoyment of the property in question. He relies on a decision of the Madras High Court in Arb. O.P. (Com. Div.) No.678 of 2023 [Mr. T. Rajesh Prasad, Partner of M/s. R. K. Properties v. Mr. K. Saji Kumar] and submits that the application under Section 11 of the Arbitration and Conciliation Act, 1996 is premature. He submits that the issue whether the suit should continue before the learned civ
