Royal Orchid Hotels Limited vs Rock Reality Private Limited. Civil Miscellaneous Petition 288/2018 decided on 13 October 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346423/1/CMP288-18-13-10-2020.pdf
Relevant paragraphs: 7(i) (iii) What is the scope of adjudication involved in the instant petition in the light of the provisions contained in Section 11(6-A) of the Arbitration and Conciliation Act,1996? (iii) Whether the dispute involved in the present petition between the petitioner-lessee/tenant and respondent-lessor/landlord in relation to a claim for specific performance arising of the lease agreement …is arbitrable warranting reference to arbitration?
Page 17….. Section 11(6-A) of the Act continues to remain in the statute book and is in force and consequently, the decision of the Apex Court in Uttarakhand Purv Sainik Kalyan Nigam Limited vs. Northern Coal Field Limited – (2020) 2 SCC 455 reiterating its earlier decisions qua Section 11(6-A) would continue to be applicable to the facts of the instant case.
Page. 18. Under these circumstances, I am of the considered opinion that by virtue of Section 11(6-A) of the Act as well as the decisions of the Apex Court in Uttarakhand’s case and Mayavati Trading’s case (supra), the scope of adjudication for this Court in the present petition is restricted / confined / limited to examining whether there exists an arbitration agreement between the parties and all and every other issue/contention of any of the parties will have to necessarily be decided by the arbitral tribunal. Page 27. ….in Nataraj Studios (P) Ltd. vs. Navrang Studios And Another – (1981) 1 SCC 523 case, the question that fell for consideration before the Apex Court was with regard to the right of landlord/lessor to seek possession/eviction of the tenant/lessee from the demised premises…., the Apex Court came to the conclusion that the designated small causes court under the Rent Act alone had the jurisdiction to adjudicate upon the right of the landlord/lessor to seek possession /eviction of the tenant /lessee and the said dispute was not arbitrable and the Arbitrator did not have jurisdiction to decide the matter……decision of the Apex Court in Nataraj’s case (supra) rendered in a fact situation qua the Maharashtra Rent Control Act whereby the lessee/tenant was a statutory/protected tenant is not applicable to the facts of the instant case in which the petitioner- lessee/tenant is neither a protected/statutory tenant in respect of the schedule property to which the Rent Control Act is not applicable.
Page 29. Para 36 of Booz Allen & Hamilton Inc. vs. SBI Home Finance Ltd., – (2011) 5 SCC 532; referred “The well-recognised examples of non- arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.
Page 30. The Judgment of the Supreme Court in Olympus Superstructures Private Limited v. Meena Vijay Khetan & Ors. – (1999)5 SCC 651 referred.
“34. … We are of the view that the right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree, with a view to shorten litigation in regular court to refer the issues relating to specific performance to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section 48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to specific performance of contracts concerning immovable property.”
32. ..Under these circumstances, applying the law laid down by the Apex Court in Olympus Superstructure’s case and Booz Allen’s case (supra), I am of the considered opinion that the dispute involved in the present petition between the petitioner-lessee/tenant and respondent-lessor /landlord in relation to a claim for specific performance arising of the lease agreement ..is an arbitrable which is capable of being resolved by reference to arbitration.
Compiled by S. Basavaraj, Advocate, Daksha Legal
Daksha Legal 