JUDGMENT :

1. Heard Shri Gaurav Tripathi, along with Shri Syed Imran Ibrahim, learned counsel for the appellant and Shri H.N. Singh, learned Senior Counsel assisted by Shri Syed Fahim Ahmed, learned counsel for the opposite party.

2. The present appeal has been filed against the order dated 14 January 2021, passed by the learned Additional District Judge, Court No. 5, Gautam Budh Nagar, Noida, Uttar Pradesh in SCC Suit No. 09 of 2019 (M/s Nikon Systems Private Ltd. vs. Agtec Industries Private Ltd.). By the impugned order, the learned Court has rejected the application filed by the appellant/defendant under Section 8 of the Arbitration and Conciliation Act, 19961, declining to refer the parties to arbitration in terms of the registered rent agreement.

3. The facts giving rise in the present appeal, briefly stated, is that the opposite party, herein, is the landlord of the demised premises bearing No. 38-B, Udyog Vihar, Ecotech-II, Greater Noida, District Gautam Budh Nagar. The property was rented to the appellant for business and commercial purpose for manufacturing sheet metal and engineering goods. The parties reduced the terms of the agreement vide rent agreement dated 7 August 2018. Clause 13.5 of the rent agreement stipulated that in the event of a dispute arising between the parties, the matter would be referred for arbitration to a panel of arbitrators. Clause 13.5 is extracted:

Arbitration Act

“Clause 13.5 – Arbitration

In the event of any dispute or difference arising out of or relating to or with reference to or in connection with Sub-Lease Deed, including the termination of the Sub-Lease Deed, the same shall be referred for arbitration to a panel of arbitrators, one to be appointed jointly by the two arbitrators so nominated, whose decision shall be final and binding on both the parties. The arbitrators so appointed shall give a reasoned award. The venue of the arbitration shall be at New Delhi and the arbitration proceedings shall be in accordance with the Indian Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be conducted in English language.”

4. It appears that a dispute arose between the parties with regard to payment of rent. Aggrieved, the opposite party instituted a suit before the Provincial Small Cause Court seeking eviction and arrears of rent. The appellant upon receiving the summons filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1973[C.P.C.], contending that in view of the arbitration clause, the court lacks jurisdiction, accordingly, prayed that the plaint be rejected and the parties be relegated for arbitration as per terms of the rent agreement. The application came to be rejected vide order dated 16 September 2019. Learned trial court while dismissing the application under Order VII Rule 11, placed reliance on the decision rendered by the Supreme Court in Himangi Enterprises vs. Kamaljeet Singh Ahliwalia, AIR 2017 SC 5137. Aggrieved, appellant approached this Court by filing a petition under Article 227 of the Constitution of India, being Writ Petition No. 7446 of 2019 (M/s Agtec Industries Private Ltd. vs. Nikon Systems Pvt. Ltd.) The petition came to be dismissed by this Court on 17.10.2019, upholding the order of the trial court.

5. The appellant chose not to assail the order, consequently, the judgment and order passed by this Court affirming the trial court order attained finality between the parties. Thereafter, appellant within thirty days from dismissal of the petition under Article 227, appeared and filed written statement on 5 November 2020, along with objection to an application filed by the opposite party/plaintiff under Order VIII Rule 10 for rejecting the defence of the appellant. Thereafter, appellant filed an application before the court below for referring the matter to mediation under Section 89 of the C.P.C. The parties agreed to mediation, accordingly, parties were referred to the Mediation Centre. The mediation between the parties