9911796707
Advanced Search 
TMI Blog2014 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... Claimant is not entitled to get any relief and therefore the Arbitration Matter of the Claimant is dismissed with costs quantified by me hereunder and I also hold and declare that the Respondent is entitled to get from the Claimant, towards its counter claim the net amount of Rs.5,57,22,090/ upto 30.11.2009 and the Claimant is hereby directed to pay to the Respondent this amount under this Award and to pay till it vacates the premises with interest from the date of the Award @ 12% p.a. till payment or realization if the Claimant does not pay this amount within 15 days from the date of this Award. I have adjudicated all the issues in dispute between the parties under this Award. 69 The Claimant is liable to bear its own cost and also to bear the cost of the Respondent of this Arbitration. The Respondent has submitted its bill of cost as under: Sr. No. Particulars Amount Nature of payment 1. Arbitral Fees 1090000 Payment for 39 sittings 2. Counsel Charges 371000 Payment for 10 sittings. 3. Purnanand & Co. 975000 Payment for 39 sittings. 2436000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator in accordance with the provisions of the Indian Arbitration & Conciliation Act, 1996 or any statutory modification or reenactment thereof for the time being in force. The Arbitrator shall give a reasoned award. It is within the contemplation of the parties that there can be more than one arbitration proceedings under the provisions of this Clause. The place for the Arbitration shall be in Mumbai and the Arbitration shall be conducted in English language. The parties shall promptly implement the award given in such Arbitration. It is clarified that notwithstanding that this Agreement shall come to an end on the expiration of the term thereof by efflux of time or on the sooner termination thereof under any of the terms and provisions herein contained, the agreement to refer all disputes and differences to arbitration contained in this Clause shall continue to apply to and govern all and any disputes and differences referred to above that may arise on account of or consequent/subsequent to the expiration or such sooner termination of this Agreement." 4 "The business conduct agreement" was for 60 months, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time pay the concerned water supply, electric supply agency the charges for water & electricity in the Hypermarket Store Area as per the bills received by Home Care from time to time. The deposits, if any, paid by Home Care to Harsh Kaushal/concerned agencies shall be returned by Harsh Kaushal to Home Care after removal of fit outs, fixture and belongings by Home Care from the Hypermarket Store Area on the expiration or sooner determination of this Agreement." 6 The no right/title/interest clause is as under: "23. Home Care agrees and confirms that they have no right, title and interest in the said Hypermarket Store Area except using it as Hypermarket Store." 7 On 19 November 2006, the Petitioner commenced its Hyper Market Store business from the Hyper Market Store Area. In the month of November 2007, the dispute arose between the parties with respect to the payment of conducting fees, outgoings and property tax. The Respondent started to withholding electric supply, physically restraining the customers of the Petitioner from entering into the Hyper Market Store, obstructing loading and unloading go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e award by overlooking the specific issue of jurisdiction so raised by accepting the counterclaim of the Respondent, based upon the agreement including the exclusive possession of the premises. The learned Senior counsel appearing for the Petitioner, therefore, submitted to decide the preliminary issue of jurisdiction of learned Arbitrator to deal with the aspect of leave and license agreement and/or related occupation charges based upon the possession of the Petitioner. The issue is also raised about the interpretation of the agreement, whether it is a "leave and license agreement" and/or "business conducting agreement". 13 It is necessary to note that the Full Bench Judgments of this Court have already dealt with the aspects of the power of the Arbitral Tribunal with regard to the "leave and license", "possession" and/or "occupation charges" and/or "relationship between the landlord and the tenant" and/or "licensor and licensee" in such matters. 14 I have dealt with the subject, in following words in Motabhai Paras Private Limited Vs. Western Paper & Yarn Pvt. Ltd MANU/MH/1817/2012: "15 I have also in Genes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1262 : (1960) 1 SCR 368 in deciding the difference between lease and licence. In para 8 of the said judgment, learned Judges held that the difference between lease and licence is to be determined by finding the real intention of the parties from a total reading of the document, if any, between the parties and also considering the surrounding circumstances. The learned Judges made it clear that use of term "lease" or licence", "lessor" or "licensor", "rent" or "licence fee" by themselves are not decisive. The conduct and intention of the parties before and after the creation of relationship is relevant to find out the intention. The learned Judges quoted from the treaties of Evans and Smith on The Laws of Landlord and Tenant and of Hill & Redman on Law of Landlord and Tenant in support of their proposition. 28. Following the aforesaid tests and in view of the discussions made hereinabove, it is clear that the intention of the parties in the case is to create a licence and not a lease and the right of exclusive possession was retained by the Corporation. In that view of the matter, relationship which is created between the Corporation and the shop holders is that of a licensor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. 15 Recently, in M/s. Thakker Warehousing Agency Vs. Maharashtra Small Scale Industries Development Corporation Ltd. Arbitration Petition No. 102 of 2011, dated 9 April 2013, I have observed that: "29 Therefore, taking overall view of the matter, including the admitted facts and the orders passed by the Court between the parties and the decisions given by the Supreme Court, as well as, this Court as noted above, I am inclined to hold that the Arbitrator has no jurisdiction to entertain and/or decide the dispute so raised/referred by the parties, based upon the alleged arbitration clause in the agreement between the parties. The dispute so referred itself was not arbitrable. The consent arbitration clause, in view of Full Bench judgments of this Court and other judgments cannot be the ground and/or take away or bring in the jurisdiction of any Court or authority. Therefore, there is no question of invoking the principle of "estoppal" and/or "waiver" by the parties. The Court, under Section 34 of the Arbitration Act, is therefore required to adjudicate and decide this issue as it goes to the root of the matter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers and/or takes away the right of the Petitioner to raise the preliminary objection about the jurisdiction of the Arbitral Tribunal and get to be decided and/or dealt with the subject of "leave and license" and/or "occupation charges", arising out of such exclusive occupation. The handing over of the possession pending the Arbitration, in no way takes away the specific pleadings so raised and as quoted above by the Petitioner with regard to the jurisdiction of the Arbitral Tribunal. 18 The clauses of permitting the business in the name "Magnet" exclusively subject to provided restrictions for minimum 5 years are not in dispute. Clause 23 as reproduced above, in no way sufficient to overlook the settled principle of law on the fact of "exclusive possession" and the way of determining "the conducting fees". The nature of clauses and the agreement, in my view, create the relationship of "Licensor and Licensee" and fall within the ambit of specific law. The relationship governed by the special statute and the specific provisions, in view of nature and quality of the occupancy. The result is, the Arbitral Tribunal has no jurisdiction to pass such award by deciding against the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclined to observe that in view of the fact that I am setting aside the award though on the ground of jurisdiction without touching the merits of the matter, the fact remains that the award is quashed and set aside and therefore, the Petitioner to bear its own costs and not the costs of the Respondent of this Arbitration, as directed. The award is modified to that extent. 22 I would have remanded the matter back for rehearing but as the issue of jurisdiction was raised and decided under Sections 16 and 34 and as the aggrieved party still can challenge such interim/interlocutory order, along with the final award, the Court has no option but to decide the same. Therefore, in view of admitted facts and the clauses of the agreement and the decisions so referred, I am inclined to set aside the award itself as it is without jurisdiction. 23 It is made clear that the existence of arbitration clause was not in dispute. The dispute is about such arbitration clause. Such Arbitration clauses, in my view, create more complications than solving the disputes. The clear arbitration rules as contemplated under the Arbitration Act are necessary to be framed under Section 82/84 of the Arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
