Back
IN THE HIGH COURT OF ALLAHABAD
MANOJ KUMAR GUPTA, JAYANT BANERJI, JJ.
M/S L.R. Print Solutions – Appellant
Versus
M/S Exflo Sanitation Pvt Ltd – Respondent
Appeal Under Section 37 Of Arbitration And Conciliation Act 1996 Defective No. -46 of 2022
Decided on : 06-12-2022
Arbitration and Conciliation Act, 1996 –Section 34 – Transfer of Property Act, 1882 – Section11– Arbitration Act, 1940 – Judicial authority – Civil Appeal – Appeal is directed against the order passed by Presiding Officer, Commercial Court, Nagar rejecting objection of appellant filed under Section 34 of Arbitration and Conciliation Act, 1996 –Held, It cannot enter into arena of factual discord and appreciation of evidence – Where court or judicial authority feels that prima facie test would be inconclusive and inadequate as it requires detailed examination of facts, matter has to be left for final determination by arbitral tribunal selected by parties – Underlying reason being to discourage parties from using referral proceeding as a ruse to delay and obstruct – While provision of Section 8 is mandatory and obligates court to refer parties to arbitration where subject matter of dispute is covered by arbitration agreement, it no where imposes any restriction on a party in invoking arbitral machinery and getting the lis decided. In instant case, although trial court while deciding issue relating to bar under Section 8 had rejected plaint without referring parties to arbitration and to that extent it's order is erroneous, but that in no manner was an impediment in invoking mechanism of redressal viz. arbitration agreed to by parties themselves – In fact, sub-section (3) of Section 8 when it provides that “notwithstanding that an application has been made under sub-section – Appeal dismissed.
JUDGMENT :
Manoj Kumar Gupta, J.
1. The instant appeal is directed against the order dated 30.06.2022 passed by the Presiding Officer, Commercial Court, Gautam Budh Nagar rejecting the objection of the appellant filed under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Objection Case No.150 of 2017).
2. The facts in brief are as follows:-
(b) The respondent by notice dated 13.09.2011 demanded arrears of rent amounting to Rs.80,688/-and also terminated the lease after expiry of 30 days.
(c) As the appellant failed to vacate the tenanted premises, the respondent instituted a suit (SCC Suit No.19 of 2011) for recovery of arrears of rent and damages as well as for eviction.
(d) The appellant filed an application in the suit purporting to be under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') read with Order 7 Rule 11 C.P.C. contending that as per the lease agreement, it was agreed between the parties that in case of any dispute or difference arising out of the same, it would be decided by the arbitrator and consequently, the court had no jurisdiction. As per Section 8 of the Act, the dispute can only be decided by the arbitrator, therefore, the plaint should be rejected under Order 7 Rule 11 C.P.C.
(e) The trial court accepted the objections and by order dated 19.09.2015 rejected the plaint in exercise of power under Order 7, Rule 11 (d) CPC holding that the suit is barred by Section 8 of the Act.
(f) The respondent thereafter nominated Sri Ashok Kumar Tripathi as arbitrator and filed a claim before him for arrears of rent; damages at the rate of Rs.25,000/-per month; interest at the rate of 18%; and eviction of the appellant.
(g) The appellant contested the claim by filing objections.
(h) The arbitrator framed five issues and gave his award dated 19.07.2017. The claim of the respondent was decreed for recovery of arrears of rent, damages and eviction of the appellant.
(i) The appellant filed objections under Section 34 of the Act against the award which was registered as Arbitration Objection Case No.150 of 2017. The court below has rejected the objections by order dated 20.06.2022 and aggrieved thereby the instant appeal has been filed.
3. The appeal was admitted by order dated 10.08.2022. Counsel for the appellant on the date the appeal was admitted made a statement that he has annexed all relevant documents with the memo of appeal and it can be heard without calling for the records of the court below. Learned counsel for the respondent also made a statement to the same effect. Accordingly, we fixed a date for hearing of the appeal and it has been heard finally.
4. The sole submission of counsel for the appellant Sri Rakesh Pande, learned senior counsel assisted by Sri Ishwar Kumar Upadhyay, is that the arbitral tribunal does not get jurisdiction to decide dispute between the parties without dispute being referred to it by the court. It is submitted that the court simply rejected the plaint and did not make reference of the dispute under Section 8 of the Act. Thus, the contention is that unless the court refers the parties to arbitration, the parties themselves cannot invoke the arbitr
When a pre-existing special mechanism is present for the adjudication of a specific type of dispute, it is not desirable to resort to other common methods. The special mechanism has been specifically....
Disputes between landlords and tenants governed by rent control legislation are non-arbitrable and must be addressed exclusively by statutory authorities.
Arbitration agreements under the Arbitration & Conciliation Act remain valid and binding despite exclusive jurisdiction claims by special statutes like the Presidency Small Cause Courts Act.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
