Advocates:
['AJAY VAID', '', 'GAGAN KOHLI', 'RAVINDER GUPTA AAG']

Sr. No. 218

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

CJ Court

Case : Arbitration Application No. 32 of 2017

Rajinder Kour

…Applicant(s)/Petitioner(s)

Through: Sh. Ajay Vaid, Advocate

v/s

Union of India and another

…. Respondent(s)

Through:

Sh. Vishal Sharma, ASGI

CORAM: HON’BLE THE CHIEF JUSTICE

ORDER

1.

Heard Sh. Ajay Vaid learned counsel for the petitioner and Sh.

Vishal Sharma, learned Assistant Solicitor General of India for the

respondents.

2.

The petition is for the appointment of an arbitrator on account of the

dispute arising out of the lease deed dated 10.10.2011. It is alleged that the

aforesaid lease was for a period of five years and that the respondents failed to

vacate the premises despite expiry of the term.

3.

Admittedly, the lease deed contains an arbitration clause vide clause

15 of the lease deed. Sh. Sharma, contends that the matter concerning

termination of lease and eviction falls within the accepted matters and may not

be arbitral and, as such, there is no point in appointment of an arbitrator. This

2 Arbitration Application No. 32 of 2017

submission has been made by him on the basis of the decision of the Supreme

Court in the Himangni Enterprises vs. Kamaljeet Singh Ahluwalia reported in

2017 (10) SCC 706, Natraj Studios (P) Ltd. V. Navrang Studios reported in

1981 (1) SCC 523 and Booz Allen and Hamilton Inc. V. SBI Home Finance

Ltd. reported in (2011) 5 SCC 532.

4.

The aforesaid decisions have no relevance for the simple reason that

the three Judges Bench of the Supreme Court in a recent case Vidya Drolia vs.

Durga Trading Corporation reported in 2021(1) RCR (Civil) 345 has laid

down otherwise and has provided that the Transfer of Property Act in no way

negates the arbitrability of such disputes and if the lease deed or the agreement

provides for the resolution of the disputes by arbitration, the same are

necessarily to be referred to the arbitration. The court made a distinction

between the statutory tenancy and those governed by simple contracts. Any

dispute in relation to tenancy governed by the simple contracts was held to be

referable to arbitration as against the statutory tenancy which is not the case in

the present case at hand.

5.

Since the agreement/lease deed contains an arbitration agreement and

the parties to the proceedings are party to the said lease deed/agreement and the

petitioner has invoked the arbitration clause vide notice dated 06.02.2017 and

the dispute was not referred to the arbitration, it is incumbent upon this Court

to appoint an arbitrator to resolve the dispute interse the parties.

6.

Accordingly, the name of Sh. Subash Chander Gupta, (Retd.

Principal District Judge Jammu) was proposed and agreed for by the parties

for appointment as the sole arbitrator, however, before the order could be typed

and signed when the said proposed arbitrator was contacted by the office to

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give his details regarding address and phone numbers etc., he declined to

accept the proposal as he was indisposed on account of some eye problem.

7.

In view of the above, I appoint Sh. D.K. Kapoor (Retired District and

Sessions Judge/Former Member of J&K State Consumer Commission), House

No. 135, Indira Vihar, Patoli (old Janipur), Jammu (mobile no. 9419180929)

from the list of the arbitrators as the sole arbitrator who shall proceed in the

matter in accordance with the provisions of the Act to make an award within

the time provided in the Act itself after charging the prescribed fee along with

incidental expenses to be shared by the parties.

8.

Arbitration Applica