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2019 Supreme(Raj) 1075
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Prakash Gupta, J.
Vishvendra Singh Jat - Appellants
Vs.
Godavari Shilp Kala Hospitality Private Limited - Respondent
S.B. Civil Misc. (Arbitration) Appeal No. 2497 of 2019
Decided On : 20-07-2019
For the Appellant : R.K. Agarwal, Sr. Counsel and Pranjul Chopra, Adv.
For the Respondents: Sharad Joshi and Muneesh Malhotra, Advs.
Headnote:
Arbitration and Conciliation Act, 1996 – Civil Procedure Code, 1908 – Order 7 – Rule 11 –Respondent-plaintiff instituted civil suit for recovering sum It averred by respondent-plaintiff in its plaint that plaintiff had taken certain properties belonging to appellant-defendant on lease and for this, lease agreement signed between parties and same registered before Sub-Registrar, after lapse of couple of years, some differences arose between parties and it difficult to reconcile differences, lease deed/agreement terminated vide letter –Held, Appellant is not applicable to facts of case Hon'ble Court dealing with question as to whether disputes between parties to agreement containing arbitration clause can be referred for arbitration notwithstanding fact one of parties to agreement puts serious allegation of fraud and misrepresentation on other party Hon'ble Court while distinguishing its earlier judgment rendered observed that though allegations of fraud and misrepresentation require detailed examination of evidence and hence, such disputes should ordinarily be left with civil courts but this cannot be followed in each and every case. While dealing with issue, Hon'ble Court had incidentally delved into meaning arbitrable and non-arbitrable, I find that said ground neither taken in application nor urged before learned court below, appellant-defendant cannot be allowed to take said ground for first time in instant appeal, since suit for recovery is summary, appellant-defendant can very-well take said ground in his leave to defend – Appeal is dismissed. (Para 15, 16, 17)
Facts of the case:
Respondent-plaintiff instituted civil suit for recovering sum It averred by respondent-plaintiff in its plaint that plaintiff had taken certain properties belonging to appellant-defendant on lease and for this, lease agreement signed between parties and same registered before Sub-Registrar, after lapse of couple of years, some differences arose between parties and it difficult to reconcile differences, lease deed/agreement terminated vide letter.
Findings of the court:
Appellant is not applicable to facts of case Hon'ble Court dealing with question as to whether disputes between parties to agreement containing arbitration clause can be referred for arbitration notwithstanding fact one of parties to agreement puts serious allegation of fraud and misrepresentation on other party Hon'ble Court while distinguishing its earlier judgment rendered observed that though allegations of fraud and misrepresentation require detailed examination of evidence and hence, such disputes should ordinarily be left with civil courts but this cannot be followed in each and every case. While dealing with issue, Hon'ble Court had incidentally delved into meaning arbitrable and non-arbitrable, I find that said ground neither taken in application nor urged before learned court below, appellant-defendant cannot be allowed to take said ground for first time in instant appeal, since suit for recovery is summary, appellant-defendant can very-well take said ground in his leave to defend.
Result: Appeal is dismissed
JUDGMENT :
Prakash Gupta, J.
1. The instant Civil Misc. Appeal has been preferred against the impugned order dated 17.05.2019 passed by the learned Additional District and Sessions Judge No. 4, Bharatpur whereby the said Court dismissed the application filed by the appellant-defendant under Order 7, Rule 11 of the Civil Procedure Code, 1908 (hereinafter "the CPC") read with Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter "the Act of 1996").
2. Brief facts giving rise to the instant civil miscellaneous appeal are that the respondent-plaintiff instituted a civil suit under Order 37 of the CPC for recovering a sum of Rs. 14,16,00,000. It was averred by the respondent-plaintiff in its plaint that the plaintiff had taken certain properties belonging to the appellant-defendant on lease and for this, a lease agreement was signed between the parties on 10.01.2011 and the same was registered before the Sub-Registrar, Bharatpur on 17.01.2011. However, after a lapse of a couple of years, some differences arose between the parties and it difficult to reconcile the differences, the lease deed/agreement was terminated vide letters dated 20.06.2014 and 31.12.2014.
3. As per the appellant-defendant since the terms contained in the letters dated 20.06.2014 and 31.12.2014 were not complied with, a suit was filed before the Rent Tribunal, Bharatpur. The appellant-defendant moved an application for issuance of recovery certificate before the Tribunal, after which a compromise was arrived at by the parties on 02.02.2016. The Rent Tribunal passed its decree on the basis of the compromise deed dated 03.02.2016. However, the appellant-defendant contended that the respondent-plaintiff did not comply with the decree and did not hand over vacant possession of the premises let out. The appellant-defendant also averred in his application that all the adjustments regarding the monetary transactions between the parties were done as per the terms and conditions of the lease deed dated 17.01.2011. Despite that, another suit was filed by the respondent-plaintiff before the civil court. The appellant-defendant, relying on the terms and conditions of the lease deed dated 17.01.2011, more particularly clause 27 thereof, contended that since the said clause in the lease deed dated 17.01.2011 mandatorily required all the disputes arising between the parties to be adjudicated by an arbitrator as per the provisions of the Act of 1996, the suit filed by the respondent-plaintiff was not maintainable and liable to be dismissed at the outset.
4. I have heard learned counsel for the parties.
5. Mr. R.K. Agarwal, learned senior counsel, repeating the averments contained in the application filed under Order VII, Rule 11 contended that the suit filed by the respondent-plaintiff was not maintainable in view of clause 27 of the lease deed/agreement dated 17.01.2011 which required all disputes between the parties to be referred and decided by an independent arbitrator and as per the provisions contained in the Act of 1996. Further, Mr. Agarwal also contended that an arbitration agreement, being an independent agreement, the existence of which is not dependent on the existence of the main contract, can be invoked by the parties even after the main contract is terminated, frustrated or repudiated.
To support his arguments, Mr. Agarwal relied on the judgment given by the Hon'ble Apex Court in SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011) 14 SCC 66 and Enercon (India) Limited and others vs. Enercon GMBH and Another, (2014) 5 SCC 1. A. Ayyaswamy vs. A. Paramasivam and Others, JT 2016 (12) SC 276.
6. On the other hand, the learned counsel for the respondents Mr. Sharad Joshi supported the impugned order and relied on the judgment given by the Delhi High Court in the case of Felex Enterprises vs. V. Sreenivas and Others, C.S. (OS) No. 1382/2008 decided on 07.09.2019 and the judgment given by the Hon'ble Supreme Court in the case of The
