Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Srijan Mehrotra, learned counsel for the applicant and Sri Pranjal Mehrotra, learned counsel for the opposite party.

2. Present application has been filed for appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”).

FACTS

3. Both the learned counsels for the parties jointly agreed that there was a lease agreement dated 4.2.2009 between the applicant and M/s. Vishal Retail Limited, New Delhi for lease of a Commercial property bearing municipal No. 111/18 A, Harsh Nagar, Kanpur Nagar, U.P., which is G+8 storied building with built up area of 20,199 Sq. Fts. at the monthly rent of Rs. 7,50,000/- which was to be enhanced by 15% after every three years from the lease rent starting date. Lease is for a period of 9 years. Clause 15 of the aforesaid lease agreement contains an arbitration clause as under:

“In case of any difference or dispute arising between the parties herein or any of the terms and conditions contained herein, such difference or dispute shall be referred to sole arbitrator appointed mutually by the Lessee and the Lessor. The provision of the Arbitration and Conciliation Act, 1996 and any modification thereof shall be applicable for settlement of dispute, thus referred. The Courts at Kanpur shall have the sole and exclusive jurisdiction to try any such dispute that may arise out of this instant agreement.”

4. Subsequently, a Deed-of-Attornment dated 31.10.2011 was executed between the applicant and one M/s. Airplaza Retail Holdings Private Limited. Whereby the applicant being owner, had let out the property in question to the opposite party on the terms and conditions of the aforementioned principal agreement dated 4.2.2009. Thus, it has been admitted before me that the applicant is the owner of the property in question which has been let out it to the opposite party under the deed of Attornment dated 31.10.2011 in terms of the lease agreement dated 4.2.2009. It has also been admitted before me by learned counsels for the parties that the agreement contains an Arbitration Clause and the applicant has issued a notice dated 5.9.2017, invoking the arbitration clause, requesting the opposite party for appointment of a sole arbitrator in terms of the deed between the parties regarding arrears of lease rent. Since despite reminders the opposite party has not agreed to the appointment of the sole arbitrator, therefore, the applicant has filed the present application for appointment of an arbitrator under Section 11(6) of the Act to resolve the dispute.

SUBMISSIONS

5. Sri Pranjal Mehrotra, learned counsel for the opposite party, has raised preliminary objection as to the maintainability of the application on the ground that dispute being a rent dispute, is not arbitrable Therefore, the arbitration application is not maintainable in view of the law laid down by Hon’ble Supreme Court in the case of Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and others, (2011) 5 SCC 532 (paras 36 and 37), Natraj Studios (P.) Ltd. v. Navrang Studios and another, (1981) 1 SCC 532 (paras 16 to 18) and Himangni Enterprses v. Kamljeet Singh Ahluwalia, (2017) 10 SCC 706 (paras 21 to 28).

6. He further submits that Small Cause Court has the exclusive jurisdiction to deal with the rent dispute in view of the provisions of Sections 15 and 16 of the Provincial Small Cause Courts Act, 1887. Therefore, the present dispute raised by the applicant being a non arbitral dispute and also since exclusive jurisdiction vests in Judge Small Cause Court, therefore, arbitrator cannot be appointed under Section 11(6) of the Act.

7. Sri Srijan Mehrotra, learned counsel for the applicant, submits that the scope of examination in applications under Section 11(4) of the Act for appointment of an arbitrator under sub-Section 6 is limited. The Court while considering such an application has only to see as to whether there exist an ag