ORDER OD – 2 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION AP/64/2025 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. DiptomoyTalukder, Advocate Mr. Supriyo Ghosh, Advocate … for the respondent.

1. Affidavit in opposition is taken on record. Mr. Banerjee submits that no affidavit-in-reply will be filed.

2. The petitioner seeks appointment of an arbitrator to adjudicate the dispute between the parties, which arose out of the Leave and Licence Agreement dated November 25, 2023. The dispute arose due to non- payment of the licence fees and refusal by the respondent to vacate the premises, upon expiry of the leave and licence agreement by efflux of time.Clause 39 of the said leave and licence agreement deals with settlement of dispute by arbitration and the same is quoted below:-

“39. 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 a leave and licence to occupy Flat No.2A measuring a total super built area of 1350 sq. ft. situated on the second floor of the building at Premises No.29, Panditiya Place, Kolkata. The leave and licence agreement was for residential purpose and 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, another 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 licence fee of Rs.7000/- and the same was payable in advance within 7th of the current month. Delay in payment would carry an interest of 2% per month. 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. Thereafter, a legal notice was issued on November 11, 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 licence fee. 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 Rs. 2,94,000/, by depositing the same in the Registry of the Alipore Court. 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 was pending, for declaration of tenancy of the respondent.

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, who is a tenant in respect of the said property, without taking recourse to the Transfer of Property Act. The respondent has already filed a civil suit for declaration of the tenancy in respect of the property in question and for permanent injunction restraining the petitione