The main legal point established in the judgment is the application of Section 8 of the Arbitration and Conciliation Act, 1996 and the determination of arbitrability of the dispute.

Rajiv Narain Raina, J.

This petition under article 227 of the Constitution of India lays challenge to the order dated 3rd August, 2012 of the learned Civil Judge (Junior Division), Faridabad rejecting the application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 for closing the suit and referring the disputes to arbitration.

2. The facts briefly are that the petitioner is owner of Reliance Mart, Crown Interiorz Mall, Sector 35, Faridabad and let out space to the respondent to operate its business through space measuring 150 square feet in the Mall. The commercial relationship between the petitioner and the respondent is governed by a written contract agreement. Clause 12 of the agreement gave Reliance absolute and exclusive control and possession over the store and any space therein, from which, it would allow the vendor to engage in business. The vendor shall not be or deemed to be in possession of any such area. The vendor shall not claim any right of tenancy, sub-tenancy, lease, license, easement or possession or any other right or interest of whatsoever nature in respect of the store or such space or any part thereof in terms of schedule 6 of the agreement. Reliance shall mean Reliance Digital Media Ltd., the petitioner before this Court. The vendor shall mean Jawed Habib Hair Xpreso, a partnership firm registered under the Partnership Act, 1932 to work out of Crown Interiorz, 1st Floor, Sector 35, Mathura Road, Faridabad, Haryana. The effective date stipulated in schedule 6 and found at page 37 of the paperbook was 20th February, 2011 shown against serial No.5 of the schedule. The 'contract validity period' of the agreement or 'the term period' was fixed at 12 months against serial No.8. In this manner, the contract would have ended on 19th February, 2012 by efflux of time. The business was to be conducted through a Kiosk measuring 150 square feet on a rent of Rs. 22,060/- per month payable from the effective date.

3. The respondent tenant, feeling threatened by the petitioner company of being forcibly evicted from the premises by unlawful means before the expiration of the contract period having been asked to vacate the kiosk on 4th February, 2012, approached the Station House Officer, Police 5th Station Sarai Khawaja, Sector 37, Faridabad with a complaint on February, 2012 for police intervention against unlawful eviction without due process of law at the hands of Gundas. Respondent tenant also approached the Civil Judge (Senior Division), Faridabad by filing a suit against the petitioner praying for grant of permanent injunction restraining the petitioner company from forced dispossession of the space without due authority of law and in accordance with it. On notice issued and summons received, the defendant company entered appearance and filed an application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 invoking clause 9 of the agreement which reads as follows :-

“Disputes. If any dispute arising out of or relating to this Agreement is not resolved amicably by the parties within 10 days of such dispute arising, then either may refer such dispute to Arbitration by written notice by which it will nominate its arbitrator. The other party shall appoint its arbitrator within 45 days of receipt of such notice, and the 2 arbitrators shall appoint the third arbitrator. Arbitration shall be conducted in Mumbai, in English, under the Arbitration and Conciliation Act. The Arbitral Award shall be in writing and shall be final and binding. Each Party shall bear its costs of arbitration. This agreement shall be governed and interpreted in accordance with the laws of India.”

4. They pleaded that the suit was not maintainable before the Civil Court and the dispute could be adjudicated only by the Arbitral Tribunal with two arbitrators appointing the third arbitrator. It was provided in clause 9 that the arbitration proceedings would be conducted at Mumbai in t