RANJIT KUMAR BOSE Vs ANANNYA CHOWDHURY
Bench: A.K. PATNAIK,V. GOPALA GOWDA
Case number: C.A. No.-003334-003334 / 2014
Diary number: 15745 / 2010
Advocates: K. S. RANA Vs
VICTOR MOSES & ASSOCIATES
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3334 OF 2014 (Arising out of SLP (C) No. 15165 of 2010)
Ranjit Kumar Bose & Anr. … Appellants
Versus
Anannya Chowdhury & Anr. … Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
Facts of the Case
2. The appellants have inducted the respondents as
tenants in respect of a shop room measuring 600 sq.
feet at HA-3, Sector-3, Salt Lake City, Kolkata, and
paying a monthly rent to the appellants. In respect
of the tenancy, the appellants and the respondents
have executed an unregistered tenancy agreement
which has been notarized on 10.11.2003. On
06.03.2008, the appellants, through their Advocates,
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served a notice on the respondents terminating the
tenancy and asking them to vacate the shop
premises and the notice stated that after April, 2008
the relationship of landlord and tenant between the
appellants and the respondents shall cease to exist
and the respondents will be deemed to be
trespassers liable to pay damages at the rate of
Rs.500/- per day for wrongful occupation of the shop.
The respondents, however, did not vacate the shop
premises and the appellants filed Title Suit No.89 of
2008 against the respondents for eviction, arrears of
rent, arrears of municipal tax, mesne profit and for
permanent injunction in the Court of the Civil Judge
(Senior Division), 2nd Court at Barasat, District North
24-Parganas in the State of West Bengal. In the suit,
the respondents filed a petition under Section 8 of
the Arbitration and Conciliation Act, 1996 (for short
‘the 1996 Act’) stating therein that the tenancy
agreement contains an arbitration agreement in
clause 15 and praying that all the disputes in the suit
be referred to the arbitrator. By order dated
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10.06.2009, the learned Civil Judge dismissed the
petition under Section 8 of the 1996 Act and posted
the matter to 10.07.2009 for filing of written
statement by the defendants (respondents herein).
3. Aggrieved, the respondents filed an application (C.O.
No.2440 of 2009) under Article 227 of the
Constitution of India before the Calcutta High Court
and contended that the tenancy agreement contains
an arbitration agreement in Clause 15, which
provides that any dispute regarding the contents or
construction of the agreement or dispute arising out
of the agreement shall be settled by Joint Arbitration
of two arbitrators, one to be appointed by the
landlords and the other to be appointed by the
tenants and the decision of the arbitrators or umpires
appointed by them shall be final and that the
arbitration will be in accordance with the 1996 Act
and, therefore, the learned Civil Judge rejected the
petition of the respondents to refer the disputes to
arbitration contrary to the mandate in Section 8 of
the 1996 Act. The appellants opposed the
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application under Article 227 of the Constitution of
India contending inter alia that the dispute between
the appellants and the respondents, who are
landlords and tenants respectively, can only be
decided by a Civil Judge in accordance with the
provisions of the West Bengal Premises Tenancy Act,
1997 (for short ‘the Tenancy Act’). By the
impugned judgment dated 16.04.2010, the High
Court has held that in view of the decisions of this
Court in Hindustan Petroleum Corporation Ltd. v.
Pinkcity Midway Petroleums [(2003) 6 SCC 503], Agri
Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors.
[(2007) 3 SCC 686] and Branch Manager, Magma
Leasing & Finance Limited & Anr. v. Potluri
Madhavilata & Anr. [(2009) 10 SCC 103], the Court
has no other alternative but to refer the disputes to
the arbitrators to be appointed by the parties as per
the arbitration agreement. The High Court, however,
has observed in the impugned judgment that if any
dispute is raised regarding arbitrability of such
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dispute before the arbitral tribunal, such dispute will
be decided by the arbitral tribunal.
Contentions of the learned counsel for the parties
4. Learned counsel for the appellants submitted that in
Hindustan Petroleum Corporation Ltd. v. Pinkcity
Midway Petroleums, Agri Gold Exims Ltd. v. Sri
Lakshmi Knits & Wovens & Ors. and Branch Manager,
Magma Leasing & Finance Limited & Anr. v. Potluri
Madhavilata & Anr. (supra), this Court has not
decided as to whether the dispute between the
landlord and the tenant could be decided by the
arbitrator in accordance with the arbitration
agreement between the landlord and the tenant and
the provisions of the 1996 Act or by the appropriate
forum in accordance with the law relating to tenancy.
He cited the decision of this Court in Natraj Studios
(P) Ltd. v. Navrang Studios & Anr. [(1981) 1 SCC
523], wherein it has been held that Court of Small
Causes alone and not the arbitrator as a matter of
public policy has been empowered to decide disputes
between the landlord and the tenant under the
Bombay Rent Act. He also relied on the observations
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of this Court in Booz Allen and Hamilton Inc. v. SBI
Home Finance Limited & Ors. [(2011) 5 SCC 532] in
para 36 at page 547 that eviction or tenancy matters
governed by a special statute where the tenant
enjoys statutory protection against eviction can be
decided by specified courts conferred with the
jurisdiction to grant eviction and such disputes are
non-arbitrable.
5. Learned counsel for the respondents, on the other
hand, relied on the decisions of this Court in
Hindustan Petroleum Corporation Ltd. v. Pinkcity
Midway Petroleums, Agri Gold Exims Ltd. v. Sri
Lakshmi Knits & Wovens & Ors. and Branch Manager,
Magma Leasing & Finance Limited & Anr. v. Potluri
Madhavilata & Anr. (supra) to support the impugned
judgment. He submitted that there can be no doubt
that the Tenancy Act will determine the rights of the
landlord and the tenant in this case, but when there
is an arbitration agreement between a landlord and a
tenant, instead of the Civil Judge, the arbitrator will
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decide the disputes between the landlord and the
tenant by applying the provisions of the Tenancy Act.
Findings of the Court
6. The relevant portion of Section 6 of the Tenancy Act
1997 is quoted hereinbelow:
“6. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds:— ………………………………………………………..”
It will be clear from the language of Section 6 of the
Tenancy Act 1997 quoted above that ‘notwithstanding
anything to the contrary contained in any contract’, no
order or decree for recovery of possession of any premises
shall be made by the Civil Judge having jurisdiction in
favour of the landlord against the tenant, ‘except on a suit
being instituted by such landlord’ on one or more grounds
mentioned therein. It is, thus, clear that Section 6 of the
Tenancy Act overrides a contract between the landlord
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and the tenant and provides that only the Civil Judge
having jurisdiction can order or decree for recovery of
possession only in a suit to be filed by the landlord.
7. Part-I of the 1996 Act is titled ‘arbitration’. Section 8
of the 1996 Act is extracted hereinbelow:
“8. Power to refer parties to arbitration where there is an arbitration agreement.-- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”
A reading of sub-section (1) of Section 8 of the 1996 Act
will make it clear that a judicial authority before which an
action is brought in a matter which is the subject of an
arbitration agreement shall refer the parties to arbitration.
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Without ‘an arbitration agreement’, therefore, a judicial
authority cannot refer the parties to arbitration.
8. In this case, there is an arbitration agreement in
clause 15 of the tenancy agreement, which provides
that any dispute regarding the contents or
construction of the tenancy agreement or dispute
arising out of the tenancy agreement shall be settled
by arbitration in accordance with the provisions of
the 1996 Act. But the words ‘notwithstanding
anything in any contract’ in Section 6 of the Tenancy
Act, will override the arbitration agreement in clause
15 of the tenancy agreement where a suit for
recovery of possession of any premises has been
filed by a landlord against the tenant. Such a suit
filed by the landlord against the tenant for recovery
of possession, therefore, cannot be referred under
Section 8 of the 1996 Act to arbitration. In fact, sub-
section (3) of Section 2 of the 1996 Act expressly
provides that Part-I which relates to ‘arbitration’
where the place of arbitration is in India shall not
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affect any other law for the time being in force by
virtue of which certain disputes may not be
submitted to arbitration. Section 6 of the Tenancy
Act is one such law which clearly bars arbitration in a
dispute relating to recovery of possession of
premises by the landlord from the tenant. Since the
suit filed by the appellants was for eviction, it was a
suit for recovery of possession and could not be
referred to arbitration because of a statutory
provision in Section 6 of the Tenancy Act.
9. In Natraj Studios (P) Ltd. v. Navrang Studios & Anr.
(supra), there was a leave and licence agreement
between Natraj Studios (P) Ltd. and Navrang Studios.
On 28.04.1979, Navrang Studios purported to
terminate the leave and licence agreement and
called upon Natraj Studios (P) Ltd. to hand over the
possession of the studios to them. Natraj Studios (P)
Ltd. filed a suit on 08.05.1979 in the Court of Small
Causes, Bombay, for a declaration that Natraj Studios
(P) Ltd. was a monthly tenant of the studios and for
fixation of standard rent and other reliefs. Navrang
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Studios filed a written statement contesting the suit.
Natraj Studios (P) Ltd. filed an application under
Section 33 of the Arbitration Act, 1940 in the Bombay
High Court for a declaration that the arbitration
clause in the leave and licence agreement was
invalid and inoperative. The High Court dismissed
the application. Thereafter, Navrang Studios filed an
application under Section 8 of the Arbitration Act,
1940 for appointment of a sole arbitrator to decide
the disputes and differences between the parties
under the leave and licence agreement. The High
Court allowed the application and appointed a sole
arbitrator. On appeal being carried to this Court by
Natraj Studios (P) Ltd., this Court held that Section
28(1) of the Bombay Rent Act vests an exclusive
jurisdiction in the Court of Small Causes to entertain
and try any suit or proceeding between a landlord
and tenant relating to the recovery of rent or
possession of any premises. This Court further held
that the Bombay Rent Act was a welfare legislation
aimed at the definite social objective of protection of
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tenants against harassment by landlords in various
ways and public policy requires that contracts to the
contrary which nullify the rights conferred on tenants
by the Act cannot be permitted and it follows that
arbitration agreements between parties whose rights
are regulated by the Bombay Rent Act cannot be
recognized by a court of law. This decision in Natraj
Studios (P) Ltd. v. Navrang Studios & Anr. (supra)
supports our conclusion that the arbitration
agreement between the landlord and tenant has to
give way to Section 6 of the Tenancy Act which
confers exclusive jurisdiction on the Civil Judge, to
decide a dispute between the landlord and the tenant
with regard to recovery of possession of the tenanted
premises in a suit filed by the landlord.
10. The High Court, however, has relied on three
decisions of this Court to hold that it is for the arbitral
tribunal to decide under Section 16 of the 1996 Act
whether it has the jurisdiction to decide the dispute
between the appellants and the respondents. We
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may distinguish those cases from the facts of the
present case.
11. In Hindustan Petroleum Corporation Ltd. v. Pinkcity
Midway Petroleums (supra), Hindustan Petroleum
Corporation Ltd. stopped supply of petroleum
products to the dealer and the dealer filed a civil suit
in the Court of Civil Judge, Rewari, for a declaration
that the order stopping supply of petroleum product
was illegal and arbitrary. Hindustan Petroleum
Corporation Ltd. filed a petition under Section 8 of
the 1996 Act praying for referring the dispute
pending before the Civil Court to the arbitrator as per
Clause 40 of the Dealership Agreement. The Civil
Judge dismissed the petition and Hindustan
Petroleum Corporation Ltd. filed a revision before the
High Court, but the High Court also dismissed the
revision. Hindustan Petroleum Corporation Ltd.
thereafter filed an appeal before this Court and this
Court held that Section 8 of the 1996 Act in its clear
terms mandates a judicial authority before whom an
application is brought in a matter, which is the
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subject-matter of an arbitration agreement, to refer
such parties to the arbitration. In this case, the
arbitration agreement contained in Clause 40 of the
Dealership Agreement was not hit by a statutory
provision like the one in Section 6 of the Tenancy Act
providing that the dispute shall be decided only by a
Civil Judge in a suit notwithstanding a provision in the
contract to the contrary.
12. In Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens
& Ors. (supra), the parties had entered into a
memorandum of understanding in relation to the
business of export and the memorandum of
understanding contained an arbitration clause that in
case of any dispute between the two parties, the
same shall be referred to arbitration, by two
arbitrators, nominated by each of the parties and the
award of the arbitrators shall be binding on both the
parties. Agri Gold Exims Ltd. filed a suit in the
District Court at Vijayawada for recovery of an
amount of Rs.36,14,887/- and for future interest on a
sum of Rs.53,79,149/-. Sri Lakshmi Knits & Wovens
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filed an application under Section 8 of the 1996 Act
for referring the dispute to the arbitral tribunal in
terms of the arbitration agreement contained in the
memorandum of understanding. This application,
however, was dismissed by the District Court, but on
revision the High Court reversed the order of the
District Court and referred the parties to arbitration.
Agri Gold Exims Ltd. carried an appeal to this Court
and this Court reiterated that Section 8 of the 1996
Act is peremptory in nature and in a case where
there exists an arbitration agreement, the Court is
under obligation to refer the parties to arbitration in
terms of the arbitration agreement, relying on
Hindustan Petroleum Corporation Ltd. (supra). In this
case again, there was no statutory bar to arbitration
like the one in Section 6 of the Tenancy Act providing
that the dispute can only be decided by the Civil
Judge in a suit.
13. In Branch Manager, Magma Leasing & Finance
Limited & Anr. v. Potluri Madhavilata & Anr. (supra),
Magma Leasing Limited Public United Company (for
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short ‘Magma’) and Smt. Potluri Madhavilata (for
short ‘hirer’) entered into an agreement of hire-
purchase for the purchase of a motor vehicle
whereunder the hirer was required to pay hire-
purchase price in 46 instalments. When the
instalments were not paid, Magma seized the vehicle
and sent a notice to the hirer saying that the hire-
purchase agreement has been terminated. The hirer
then filed a suit against Magma in the Court of the
Senior Civil Judge for recovery of possession of the
vehicle and for restraining Magma from transferring
the vehicle. Magma filed a petition before the Civil
Judge under Section 8 of the 1996 Act praying that
the dispute raised in the suit be referred to an
arbitrator in terms of Clause 22 of the Hire-Purchase
Agreement, which contained the arbitration
agreement. This Court reiterated that Section 8 is in
the form of legislative command to the court and
once the prerequisite conditions are satisfied, the
Court must refer the parties to arbitration. In this
case again, there was no statutory bar to arbitration
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like Section 6 of the Tenancy Act providing that the
dispute can only be decided by a Civil Judge.
14. The High Court, therefore, was not correct in coming
to the conclusion that as per the decisions of this
Court in the aforesaid three cases, the Court has no
alternative but to refer the parties to arbitration in
view of the clear mandate in Section 8 of the 1996
Act. On the contrary, the relief claimed by the
appellants being mainly for eviction, it could only be
granted by the “Civil Judge having jurisdiction” in a
suit filed by the landlord as provided in Section 6 of
the Tenancy Act. The expression “Civil Judge having
jurisdiction” will obviously mean the Civil Judge who
has jurisdiction to grant the other reliefs: decree for
arrears of rent, decree for recovery of arrears of
proportionate and enhanced municipal taxes, a
decree for mesne profits and a decree for permanent
injunction claimed in the suit.
15. For the aforesaid reasons, we allow this appeal and
set aside the impugned judgments of the High Court
and the Civil Judge, Senior Division, and remand the
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matter to the learned Civil Judge, Senior Division,
who will now give an opportunity to the respondents
to put in their written statements and thereafter
proceed with the suit in accordance with law.
Considering the peculiar facts of this case, there shall
be no order as to costs.
.....……………..…….J. (A. K. Patnaik)
....…………..……….J.
(V. Gopala Gowda)
New Delhi, March 07, 2014.
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