KAPIL KUMAR KATYAL Vs. PRAVEEN CHANDRA BHANJDEO

JUDGEMENT

(1.) The appellants were the landlords in respect of flat No. 2C, Bata May Fair, 3, May Fair Road, Kolkata measuring about 2920 square feet area. The appellants also owned car parking places being C6, C7 and C9. According to the appellants, they purchased the flat after obtaining financial assistance from ICICI Bank to the extent of Rs. 71, 10,177/- . The appellants had three daughters, all of them were of marriageable age. To meet the expenses to pay off the monthly instalments, the appellants let out the flat in question to the sole respondent vide licence agreement dated March 15, 2007 initially for a period of two years for a lump sum amount of Rs. 30, 00000/-. The said agreement also provided that after the expiry of the two years' period licensee would become liable to pay Rs. 2.25 lacs per month for a further period of eleven months and for that a sum of Rs. 7.5 lacs was kept as additional amount earmarked as security deposit. The said agreement contained an arbitration clause to the effect that in case of any dispute such dispute would be resolved by the sole arbitration of Shri Prabhat Shroff, an advocate of this Court. Dispute arose when the sole respondent stopped making payment of monthly rent of Rs. 2.5 lacs after March 14, 2009. The appellants through their advocate's notice demanded rent which respondent refused to pay. According to the respondent, the appellants entered into an oral agreement for sale of the flat in question at and for a sum of Rs. 316 lacs out of which the initial payment of Rs. 30,00000/- was to be adjusted as earnest money. Thereafter diverse sums were paid either by the respondents or by his nephew on his behalf leaving a balance sum of Rs. 1,36,00,000/- which they were ready and willing to pay on execution of the conveyance by the appellants. The respondents filed a suit for specific performance being Title Suit No. 904 of 2009 before the Civil Judge (Senior Division), 2nd Court, Alipure. The appellants filed an application under Section 5 and 8 of the Arbitration and Conciliation Act, 1996 inter alia praying for stay of the suit in view of the arbitration Clause contained in the licence agreement dated March 15, 2007 referred to above. The said application was heard by the learned Judge when the judgment was reserved. During pendency of the said proceeding the appellants filed an application under Section 9 of the said Act of 1996 being Miscellaneous Case No. 699 of 2009 before the same Judge inter alia praying for direction upon the respondents to make payment of the monthly rent at the rate of Rs. 2.25 lacs on and from July 14, 2009 after giving credit to the sums lying as security deposit. The respondent opposed both the applications inter alia on the ground that the parties had given a go by to the licence agreement which was substituted by a subsequent oral agreement for sale. Hence, there could be no arbitration as the original agreement did not subsist. The respondents also contended that the learned Civil Judge (Senior Division), 2nd Court, Alipure was not the appropriate Court to be moved under Section 9 of the said Act of 1996. The learned Judge negated the contentions of the respondent with regard to maintainability of the said application, however refused to grant any relief to the appellants under Section 9 on the ground that they should wait till a decision was taken by the Court in the application made under Section 5 and 8 of the said Act of 1996.

(2.) Being aggrieved, the appellants preferred the instant appeal before us which was heard by us on the above mentioned date. The respondent also filed cross-objection being aggrieved by the part of the order where their contention with regard to maintainability was rejected by the Court below.

(3.) Appearing for the appellants Mr. Ashok Kumar Banerjee, learned senior advocate contended as follows: