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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: July 27, 2016

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FAO 344/2016

HIMANGNI ENTERPRISES

..... Appellant

Through:

Ms. Geeta Luthra, Senior

Advocate, with Mr. Harvinder

Oberoi & Mr. Shonak Sharma,

Advocates

versus

KAMALJEET SINGH AHLUWALIA

..... Respondent

Through:

Mr. Anil Sapra, Senior Advocate

with Mr. Sameer Chaudhary, Mr.

Preet Pal Singh, Mr. Harishit

Aggarwal & Ms. Roopali Kapoor,

Advocates

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

% (ORAL)

Caveat Nos. 608 to 636 of 2016

Twenty nine caveats have been filed in this appeal.

Caveators are represented through Mr. Sameer Chaudhary,

Advocate.

Caveators are discharged.

These caveats are accordingly disposed of.

C.M.No. 26715/2016 (u/S 151 CPC)

There is delay of 12 days’ in re-filing the accompanying appeal.

For the reasons stated in the application, it is allowed and delay is

2016:DHC:5307

condoned.

The application is disposed of.

C.M.No. 26714/2016 (Exemption)

Allowed subject to all just exceptions.

FAO 344/2016 & C.M.No. 26716/2016 (for stay)

Impugned order of 11^thApril, 2016 rejecting appellant/defendant’s

application under Section 8 of the Arbitration and Conciliation Act, 1996

is assailed on the ground that even if the agreement containing the

arbitration clause is not renewed, still the disputes arising under it are

required to be adjudicated by the Arbitrator.

In a suit for ejectment, mesne profits, recovery of arrears and

injunction filed by the respondent-plaintiff, the stand taken by

appellant/defendant is that respondent-plaintiff was aware of the

agreement of appellant with M/s. Wipro, by virtue of which M/s. Wipro

was inducted into the suit premises by the appellant and there arose some

disputes between the appellant and M/s. Wipro, which are subject matter

of CS (OS) No.3273/2014 pending in this court. Appellant-defendant

came into possession of the suit property i.e. Commercial Space/Shop

Delhi by virtue of a Lease Agreement of 31^st August, 2010 between

appellant and predecessor-in-interest of respondent-plaintiff. As per the

aforesaid Lease Agreement of 31^st August, 2010, the lease was for a

2016:DHC:5307

period of three years, which could be renewed for a further period of six

years. According to learned senior counsel for appellant, the dispute

which is the subject matter of the suit is liable to be referred to arbitration

as a valid arbitration agreement exists between the parties.

During the course of the hearing, a reference was made to Clause

9.8 of the Lease Agreement of 2010 by learned senior counsel for the

appellant to submit that even if the Lease Agreement lapses, still in view

of the arbitration clause contained therein, the disputes arising out of it

have to be adjudicated by the Arbitrator and not the court. Attention of

this Court was drawn by learned senior counsel for appellant to Section

16 of the Arbitration and Conciliation Act, 1996 to submit that the

Arbitrator is competent to rule in respect of the existence or validity of

the arbitration agreement and its jurisdiction. Reliance was placed upon

Supreme Court’s decision in Enercon (India) Limited and Others v.

Enercon GMBH and Another (2014) 5 SCC 1 to submit that even the

issue of there being a concluded contract was left to the Arbitral Tribunal

and the case of appellant is on a better footing as the existence of

arbitration agreement is not in dispute. Reliance is also placed upon

Supreme Court’s decision in Branch Manager, Magma Leasing and

Finance Limited and Another v. Potluri Madhavilata and Another (2009)

10 SCC 103 to submit that upon termination of contract due to its breach,

the disputes relating to the contract are arbitrable.

Further reliance is placed by learned senior counsel for appellant

upon Supreme Court’s decision in Ashapura Mine-Chem Limited v.

Gujarat Mineral Devel