TMI Blog2014 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the jurisdiction of the Arbitral Tribunal. The Arbitrator has no jurisdiction and/or authority to pass and to entertain such claim, as it is barred by specific provisions. The consequential orders/reliefs so passed, therefore, also unsustainable. This itself is not mean that the Respondent is not entitled to take appropriate steps in accordance with law. We are concerned with the eviction order and related orders passed by the Arbitrator. In the present facts and circumstances, therefore, keeping all points open as the remedy is elsewhere, I am inclined to set aside the award. The amount paid and received shall be subject to adjustment. The parties are at liberty to settle the matter - so far as the costs is concerned, the Claimant¬Petitioner is under obligation to make the payment as per bill dated 14 January 2010 as mentioned in para 70 of the Award. The amount to be paid to the Respondent as submission is made by the learned senior counsel appearing for the Respondent that they have already made the payment as per the bill. The Petitioner to make the payment therefore directly to the Respondent within four weeks - Following decision of M/s. Thakker Warehousing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Purnanand Co. 975000 Payment for 39 sittings. 2436000 70 The Claimant has also not paid the Arbitral fees as per my bill dated 14.1.2010 forwarded to the Attorneys of the Claimant. I direct the Claimant to clear its arrears before the Award is handed over to the Claimant, as per my bill. In case the Claimant fails to make the aforesaid payment within one week of date of the intimation to the Attorneys of the Claimant, the Respondent shall pay the same as provided under Section 38(2, first proviso of the Arbitration Conciliation Act, 1996 and may recover the same from the Claimant as per law. The learned Arbitrator thereby allowed the counter claim filed by the Respondent and rejected the case of the Petitioner Original claimant. 3 The basic facts as per the Petitioner are as under: On 16 October 2006, by a Conducting Agreement, Respondent granted to the Petitioner a right to set up, conduct and operate business of Hypermarket Store from the entire third floor (admeasuring 7000 sq.ft.), en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as for 60 months, with the lock in period of 36 months. There was right to conduct, manage and operate the business of Hypermarket store and right to have removable internal renovations, additions and alterations, suitable for the business need. It was agreed that the use of the area incidental to its right to conduct, manage and operate the business of Hypermarket store. 5 The conducting fee and liability clauses are as under: 11 In consideration of Harsh Kaushal having under this business arrangement permitted Home Care to conduct, manage and operate the Hypermarket Store business in the Hypermarket Store Area, during the term of this Agreement beginning from the Commencement Date, Home Care shall pay to Harsh Kaushal a Conducting Fee (herein referred to as the Conducting Fee ) to be computed at the rate of 5% (five per cent) on the gross sale upto Rs.3 (three) Crores and for gross sale exceeding Rs.3 (three) Crores, 7% on the difference (i.e. if the sales is Rs.3 crores then the conducting fees at 5% will be Rs.15 Lacs and if the sale is Rs.4 crores then on additional Rs.1 crore sale exceeding Rs.3 Crore additional Rs.7 Lacs will be paid as conducting fee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense Agreement as per the Petitioner. No interim relief was granted therefore, an Appeal against the order was preferred in this Court. 8 The Petitioner was ordered to deposit a sum of Rs.60 lacs in the Trial Court with the liberty to the Respondent to withdraw the same on certain terms and conditions. The sum of Rs.60 lacs was paid accordingly. 9 By consent an Arbitrator was appointed. On 28 January 2008, the Arbitration proceedings commenced. The parties filed their respective pleadings and led evidence also. On 4 February 2010, the learned Arbitrator passed the award. 10 c. The Respondent in the counter claim prayed as under: This Hon'ble Forum be pleased to direct Respondents to remove their fit outs and vacate Hyper Market store area; e. This Hon'ble Forum be pleased to direct the Respondent to pay property taxes, electricity charges, water charges and all other outgoings in respect of the hyper market store area from 8.1.2008 till they remove the fit outs and vacate the hyper market store area. f. This Hon'ble Forum be pleased to direct the Respondent to pay to the Claimant herein a sum of Rs.22 lacs per month as and by way of liquidated damag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the ambit of special statutes. If the Court has no jurisdiction, there is no question of permitting the Arbitral Tribunal to deal with such issue in view of specific bar created under those rent control and related statutes. 16 The shop owners put in possession on license various shops and offices by a public local body, by retaining right of exclusive possession, while dealing with the same, the Apex Court, in New Bus Stand Shop Owners Association Vs. Corporation of Kozhikode Anr. MANU/SC/1696/2009 = (2009) 10 SCC 455 has observed as under: 25. Reference in this connection can also be made to a later judgment of the Court of Appeal in Marchant Vs. Charters, (1977) 1 WLR 1181 : (1977) 3 All ER 918 (CA), where again Lord Denning reiterated these principles in a slightly different form by holding that the true test is the nature and quality of the occupation and not always whether the person has exclusive possession or not. The true test in the language of the learned Judge is as follows: (WLR p. 1185 F H) ......It does not depend on whether he or she has exclusive possession or not. It does not depend on whether the room is furnished or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s averred in the reply, are as under: g. .... It was further agreed that the Petitioner would enjoy the facilities during working days and during working hours only. It was provided in the said Agreement that the Respondent shall close and open entrance to the said Premises at the time and days mentioned in the said Agreement. The possession of the Premises, including the area from which the Petitioner was allowed to conduct its business, continued to be with the Respondent at all times. h. Since the access was only for the purpose of use of the facilities, it was agreed and understood that access to the premises and the facilities would always be in the exclusive control of the Respondent. Accordingly, the main entrance to the premises was kept under lock and key of the Respondent. After some time, the Petitioner however represented that they sometimes required access to the facilities when the premises were locked and the Respondent's representatives were not available. Without giving the Petitioner any right to the premises or any part thereof, the Respondent gave a duplicate set of main door keys to the Respondent only by way of indulgence and convenience. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate proceedings in accordance with law. The amount paid and/or received shall be subject to adjustment, if any. All points are kept open as there is no decision given on merits of the matters, including on limitation. The parties are at liberty to settle the matter. 16 The learned Senior Counsel appearing for the Respondent has strongly relied upon the various Judgments and thereby contended that; the agreement in question is business conducting agreement and the learned Arbitrator, therefore has interpreted the agreement accordingly. The possession of the premises was also not in question as it was handed over, pending the Arbitration proceedings. Even otherwise, in such type of agreement, possession of the room is always consequential thing. It is indivisible part of the contract and therefore, there is no question of dealing the matter referring to Section 41 of the Small Causes Court Act. There is no question of licensor or licensee relationship, including any order of eviction. The scope of interference of Section 34 of the Court, as there was interpretation of the agreement between the parties, is quite limited. Therefore, the interpretation so given, need not be interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the law, so also the Arbitral Tribunal. Therefore, the operative order. The submission of Senior Counsel appearing for the Respondents that no such objection and/or plea specifically raised before the Tribunal, therefore, no reason now to accept such contention of the Petitioner, is unacceptable in view of the clear provisions of law and the Judgments. The Court under Section 34 just cannot overlook the issue of law and jurisdiction if case is made out. The party can waive their rights as permissible even under the Arbitration Act, but not the question of law and the jurisdiction based upon admitted and agreed clauses/terms itself. There is no question of estoppal or waiver in such situation. The authorities cited by the Respondents are distinguishable and distinct on the facts and circumstances. By this Judgment, I am only deciding the preliminary point, which goes to the root of the matter with regard to the power of Arbitral Tribunal to deal with such dispute. The decision to proceed with the matter inspite of objections, itself, was wrong. This in no way conclude the issue/right of the Respondent to get relief or invoke the other available remedies. All points are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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