RAVINDRA VITTHALRAO SONGIRE Vs. LABHSHETWAR AND SAKKARWAR COSTRUCTIONS

JUDGEMENT

(1.) This is an application by applicant seeking appointment of Arbitrator under section 11 of the Arbitration and Conciliation Act, 1996.

(2.) Petitioner claims to be lessee in respect of leasehold premises belonging to the respondents. Petitioner contends that the lease is in respect of the constructed property having basement, ground floor, second floor and terrace constructed on plot No. 4 situate at Vedant Nagar, Aurangabad. It is the contention of the applicant that the parties initially executed agreement titled as Leave and License, however, according to the terms and conditions of the said agreement, the document shall have to be construed as lease agreement. It is contended that after expiry of the period prescribed under the first agreement, fresh agreement came to be executed on 19-1-2007 which is also titled as Leave and License for a period until 18-7-2009. However, according to the applicant, although the document is styled as Leave and License agreement, proper construction of the terms contained in the document make it clear that it is lease deed executed by respondents in favour of the petitioner. According to petitioner, there arose certain dispute/differences between the parties which necessitates appointment of Arbitrator. The document executed between the parties contain a clause in respect of appointment of Arbitrator for resolving the disputes arising between the parties. It is contended by the petitioner that agreement arrived at between the parties which is reduced into writing contain clause No. 21 which makes it mandatory to make reference to the Arbitrator for resolving the dispute. It is contended that there exists disputes which are required to be resolved by making appointment of the Arbitrator. Thus, according to the petitioner, there exists live claim which is required to be settled through mechanism of the Arbitrator.

(3.) Contentions raised by the petitioners have been opposed by the respondents mainly on two grounds. It is contended that clause 21 contained in the agreement cannot be construed as arbitration agreement within meaning of section 7 of the Arbitration and Conciliation Act, 1996. According to the respondents, the agreement necessarily or mandatorily does not require appointment of Arbitrator. As such, application seeking appointment of Arbitrator is not maintainable. Second argument advanced by the respondents is that as the petitioner himself has pleaded about the relationship between the parties as lessor and lessee and as the petitioner himself has contended that the agreement in question is essentially a lease agreement, by virtue of provisions of section 33 of the Maharashtra Rent Control Act, the questions/disputes raised by the applicant fall within exclusive domain of the forum created under the provisions of said enactment. It is contended that section 33 of the Maharashtra Rent Control Act excludes the jurisdiction to entertain any suit, proceeding or application which deals with, claims or questions relating to recovery of rent or possession arising between the landlord and tenant. Determination of the question between the landlord and tenant relating to recovery of rent or possession falls within the exclusive jurisdiction of the Civil Court in view of provisions of section 33(l)(c) of the Maharashtra Rent Control Act. According to learned counsel for the respondents, therefore, reference to Arbitrator for determination of the questions/disputes is impermissible.