TMI Blog2003 (7) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of the lease period. The plaintiff-respondent contended in the suit that immediately on the expiry of the lease period, the plaintiff got issued a notice calling upon the petitioner to hand over possession of the property. The petitioner-defendant sent reply notice on 20.3.1998 refusing to hand over possession of the premises. The respondent-plaintiff decided to invoke the provisions of arbitration clause contained in the lease deed and as per the amended provision of Arbitration Act, 1996 notified the appellant by registered letter dated 9.4.1998 expressing that the matter should be referred to an Arbitrator for determination. The defendant took up a stand that the plaintiff has no right to refer the dispute to the arbitration as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the petitioner-defendant for referring the dispute to an Arbitrator for adjudication. 6. The registered lease deed is dated 3.9.1973. The recitals contained in 4(a) of the said lease deed read as follows: Every dispute difference or question which may at any time arise between the parties hereto or any person claiming under them, touching or arising out or in respect of this deed or the subject matter thereof shall be referred to arbitration and the provisions of the Indian Arbitration Act, 1940 will be applicable thereto. The handing over of possession by the petitioner - defendant to the respondent - plaintiff after the expiry of the lease period is certainly a matter touching or arising out or in respect of the regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . T.N. Ragupathy submits that it is permissible where the conditions required to be satisfied under Section 8(1) and 8(2) of the Act are satisfied by the party seeking for such a remedy under the Act. Section 8 stipulates the procedure for referring parties to arbitration where there is an arbitration agreement. The provision reads: 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 matter 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 Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not necessarily prior to the filing of the first statement. But, despite all these the petitioner-defendant has clearly disentitled himself to the relief sought by him in I.A. No. 2. The language of Section 8 though peremptory and an obligation is cast on the Court to refer the dispute to arbitration, the Court can still decline to exercise power under Section 8, if it is shown to the satisfaction of the Court that the person moving the Court is disentitled to the relief claimed by him and that the whole idea in moving the application for referring the matter to arbitration is to prolong the issue and to deny the other party the relief to which he is rightfully entitled to. The facts in this case clearly reveal that the petitioner who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im in law and when such a recourse is resorted to by the other party, the party who had waived his right to settle the dispute in an arbitration proceedings cannot be permitted to turn around and contend that he is entitled to the remedy of arbitration and the recourse to the suit by the other party under the common law is bad. The petitioner-defendant is estopped from taking up such a stand by his own conduct and the principle of law that no party to a legal proceeding can be permitted to approbate and reprobate in the matter of defending a cause has general application to all matters and the choice of the legal process to which one can stake claim in defending his legal rights is also governed by the said general principle. The general pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right by taking the stand that the matter is not arbitrable can be permitted in law to turn around and regain the very same right merely on the ground that the conditions stipulated under Section 8 are all satisfied. The stand taken by the petitioner-defendant in the first place while replying to the notice of the respondent-plaintiff disputing the application of the arbitration Act to the dispute between them tantamounts to the waiving of the right to settle the dispute in an arbitration proceeding and a right once waived cannot be allowed to be reclaimed if it would work hardship against the other party. The order passed by the Court-below on I.A. No. 2, therefore, does not call for any interference. The revision petition is, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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