KHOSLA SPORTS INDUSTRIES Vs. HAR MOHINDER BHATIA

JUDGEMENT

(1.) THE present application has been filed under Section 11(6) of the Arbitration & Conciliation Act,1996 (hereinafter referred to as the Act) for appointment of an Arbitrator as a dispute has arisen inter se the parties in terms of arbitration clause contained in commission agreement dated 24.5.78 wherein Shri Shyam Sunder Gosain has been named as sole arbitrator to be so appointed. Mr. Shyam Sunder Gosain when appointed as Arbitrator and was requested to enter into reference and adjudicate upon the dispute inter se the parties, vide his letter dated 21.12.2005 showed his disinclination to adjudicate upon the dispute as referred to him vide letter dated 14.4.2005, due to his personal reasons and other exigencies of work. It was on his refusal that the present application has been filed for appointment of an arbitrator by the Court.

(2.) RESPONDENT has disputed the nature of document which has been titled as Commission Agreement containing the arbitration clause and has alleged that in fact it is a lease agreement or a rent agreement inter se the parties. To emphasis this he has referred to modification of the agreement vide which commission was fixed at Rs.600/ - per month to be paid before 5th of every month in advance. The Commission Agreement has a clause which indicates that initially this agreement was for 11 months only which is deemed to have been extended if the petitioner did not terminate the agreement by giving one month's notice. There is a receipt dated 17.5.1996 issued by Mr.V.Khosla, partner of the petitioner which clearly indicates that the payment was being made towards rent and the payment as detailed in this receipt upto 31.1.1996 was payment of rent which was acknowledged by the petitioner by way of this receipt. Therefore, according to the respondent it being a rent agreement, it is only the Rent Controller under the Delhi Rent Control Act, who has the power to adjudicate upon the dispute or the claim of the petitioner seeking ejectment of the respondent from the suit property.

(3.) LEARNED counsel for the petitioner has submitted that in view of arbitration clause contained in the Commission Agreement, even if the plea of the respondent is accepted as correct, the matter has to be referred to the arbitrator to be appointed by this Court, who is competent to decide nature of the agreement executed inter se the parties and decide about his jurisdiction.