In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar F.M.A.T. No. 57 of 2021 Star Track Agency Private Limited Vs.

Efcalon Tie Up Private Limited For the appellant : Mr. Anindya Kumar Mitra, Mr. Zeeshan Haque, Mr. Chunky Agarwal, Ms. Abhismita Goswami, Mr. Ram Maroo For the respondent : Mr. Sabyasachi Chowdhury, Mr. Mainak Bose, Mr. Siddhartha Banerjee, Mr. Dwipayan Basu Mullick, Mr. Naman Chowdhury, Mr. Rajesh Upadhyay, Mr. Akshay Jain Sukhani For the Kolkata Port Trust : Mr. Ashok Kumar Jena Heard on : 03.03.2025, 06.03.2025, 13.03.2025, 25.03.2025, 26.03.2025, 27.03.2025 Hearing concluded on : 07.04.2025 Judgment on : 22.04.2025 Sabyasachi Bhattacharyya, J.:-

1. The present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, “the 1996 Act”) has been preferred against a judgment passed by the Commercial Court at Alipore under Section 34 of the said Act, affirming an interim award dated July 15, 2017, subsequently amended on July 22, 2017, passed by the learned Arbitrator in A.P. No.595 of 2016.

2. The genesis of the dispute is an agreement dated December 26, 2004, purporting to create a license between the parties, namely Star Track Agency Private Limited and Efcalon Tie Up Private Limited. The purported licensee, namely Star Track (the present appellant) had previously referred the matter to arbitration, seeking to cancel the said agreement. In the said proceeding, the purported licensor Efcalon had filed a counter claim seeking recovery of possession, arrears of license fees and other consequential reliefs.

3. The previous learned Arbitrator disposed of the said proceeding by declaring the agreement dated December 26, 2004 null and void and directing it to be delivered up to and cancelled, as well as passing an award of Rs.1,51,44,208/- to be paid by Efcalon to the claimant along with simple interest at the rate of 15 per cent per annum from the date on which the respondent had realized the amount to the date of refund, with costs of arbitration assessed at Rs.1,00,000/-.

4. The said award was challenged under Section 34 and thereafter under Section 37 of the 1996 Act, which culminated in a Division Bench judgment of this Court allowing the challenge, thereby setting aside the award, inter alia with the observation that the present appellant Star Track could not be permitted to stay in possession without paying occupation charges.

5. Thereafter, Efcalon sought to initiate a fresh arbitral proceeding seeking recovery of possession and consequential reliefs against Star Track. Upon the parties being unable to agree upon an Arbitrator, an application under Section 11 of the 1996 Act was preferred, which was decided, thereby appointing the present learned Arbitrator. In connection with the dispute, there was a previous order passed under Section 9 of the 1996 Act as well.

6. Upon the matter being referred to arbitration for the second time, an application under Section 31(6), for interim award of recovery of possession, was also made by the claimant Efcalon, which was initially decided by the interim award dated July 15, 2017, whereby the prayers made in paragraph 39, sub-paragraphs A, B, C, D, E, F and G of the Statement of Claim were allowed in their entirety. Subsequently, the initial interim award was amended vide the corrected award dated July 22, 2017, restricting the interim award only to eviction in terms of the prayers made under Section 31(6) of the 1996 Act.

7. Being thus aggrieved, a challenge was preferred by Star Track under Section 34 of the 1996 Act, which met with dismissal on contest on January 5, 2021, being aggrieved by which the interim award debtor Star Track has preferred the present appeal under Section 37 of the

1996 Act.

8. Learned senior counsel appearing for the appellant argues that the learned Arbitrator committed a perversity and acted contrary to the provisions of Section 28(