ORDER OD – 1 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION AP/63/2025 MS. SAROJ DEY VS MR. ASHIM GHOSHAL BEFORE:

The Hon’ble JUSTICE SHAMPA SARKAR Date: 18th December, 2025.

Appearance:-

Mr. Snehashis Sen, Advocate Mr. Abhishek Banerjee, Advocate Ms. Debasmita Nandi, Advocate … for the petitioner.

Mr. Diptomoy Talukder, Advocate Mr. Supriyo Ghosh, Advocate … for the respondent.

1. Affidavit in opposition is taken on record. Mr. Banerjee submits that no reply is necessary.

2. The petitioner seeks appointment of an arbitrator to adjudicate the dispute between the parties which arose out of the infrastructure user agreement dated November 25, 2023. Clause 13 of the said agreement deals with settlement of dispute by arbitration and the same is quoted below:-

“13. Any dispute and/or differences arising out of this Agreement shall be referred to the arbitration by a sole arbitrator to be mutually appointed by the parties, whose decision shall be final and binding on both the Parties and such arbitration shall be conducted as per the provisions of the Arbitration and Conciliation Act, 1996 and/or any amendment made thereunder from time to time. The place of arbitration shall be within Kolkata and only the Courts at Kolkata shall have the jurisdiction in the matter.”

3. The petitioner contends that the respondent was granted leave and licence to occupy Flat No.2A measuring a total super built area of 1350 square feet situated on the second floor of the building at Premises No.29, Panditiya Place, Kolkata, for residential purpose. The leave and licence agreement was executed on November 25, 2023. The same was valid for a period of 11 months i.e. from December 1, 2023 till October 31, 2024. Along with the leave and licence agreement, the subject infrastructure user agreement was also executed on November 25, 2023. The said agreement was in respect of use and enjoyment of infrastructure facilities, common areas, car parking space etc. in the ground floor. According to the said user agreement, the respondent was required to pay a monthly charge of Rs.23,000/- and the same was payable in advance within 7th of the current month. Delay in payment would carry an interest of 2% per month. The dispute arose when arrears of the user charges had not been liquidated by the respondent. By a letter dated September 24, 2024, the respondent was called upon to vacate the property and hand over peaceful possession on and from November 1, 2024. The respondent was also called upon to clear all electricity charges for the electricity consumed up to October 31, 2024. It is the specific case of the petitioner that the leave and licence expired by efflux of time on October 31, 2024. The respondent did not vacate the premises. The respondent did not pay the arrear user charges. The petitioner filed an application under Section 9 of the Arbitration and Conciliation Act, 1996, seeking a direction upon the respondent to secure the sum allegedly payable towards the user charges. An ad interim order was passed by the competent court directing the respondent to secure the amount due. The petitioner contends that, as of today, the dues are more than Rs.5 lakh. A notice invoking arbitration was issued on January 24, 2025. The respondent denied the request of the petitioner to refer the dispute to arbitration, on the ground that a civil suit for declaration of tenancy of the respondent,was pending.

4. Mr. Talukder, learned advocate for the respondent, submits that this is not a fit case for reference to arbitration. The dispute involved between the parties is covered by the provisions of the Transfer of Property Act. The petitioner cannot evict the respondent without taking recourse to the Transfer of Property Act. The respondent had already filed a civil suit for declaration of the tenancy in respect of the property in question and for permanent injunction restraining the petitioner from interfering with the respondent’s use and enjoyment of the property i