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TMI Blog2014 (6) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, by the 1st Agreement, the Respondent allowed the Petitioner to utilize the godown for their warehousing business for 11 months, from 28 February, 2001 to 31 January, 2002. Since the Respondent was the tenant of MPT, the agreement was was termed as "Warehousing Agreement" and the Petitioner was termed as "Warehousing Agents". The Petitioner was put in exclusive physical possession of the godown. The arrangement was camouflaged as a agreement of "warehousing agency" under the "Commercial Warehousing Scheme.". The Petitioner carried on their own business of warehousing in their name and were paying the godown charges/license fees, at a rate of Rs.5.25/ per sq.ft per month, as provided in the agreement itself. The Petitioner was in fact a licensee of the Respondent in respect of godown. 4 On 1 February 2012, the IInd Agreement for warehousing for a further period of 11 months on the same terms was entered into. However, Respondent unilaterally increased the monthly rental from Rs.5.25 per sq.ft to Rs.7.00/per sq.ft per month. On 2 December 2002, the Petitioner received the letter of the Respondent inviting them to submit their offer. On 16 January 2003, the Petitioner submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive consideration of the Respondent. An Interim Award was passed by consent of the parties by the learned Arbitrator by accepting the proposal for interim arrangement submitted by the Petitioner vide their letter Advocate's letter dated 22 February 2007. 8 On 22 February 2008, one Mr. S.L.Kulkarni, informed the Petitioner's Advocate that he is nominated as an Arbitrator as the earlier Arbitrator Mr. V.S. Mulwad resigned though no communication was received by the petitioner either from the learned Arbitrator or the Respondent. Correspondence followed whereby the Petitioner through their Advocate objected the appointment of Mr. Kulkarni as an Arbitrator. The Petitioner filed an Arbitration Appeal in this Court challenging the appointment of the new arbitrator. The Arbitration Appeal was withdrawn and the petitioner proceeded with the arbitration without prejudice to their case that the purported appointment of Mr. Kulkarni is illegal, bad in law. 9 On 20 March 2009, despite order of the High Court dated 14 December 2004 and interim award dated 23 February 2007 passed by consent, the Respondent was continuously attempting to and was interfering with the possession and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 Petition on 3 December 2004 for protection of the possession of the godown. The possession was protected by order dated 14 December 2004. The Petitioner invoked the arbitration agreement. 16 The Petitioner filed Section 17 application before the learned Arbitrator, as inspite of Order dated 24 December, 2004, and interim award dated 23 February 2007, the Respondent was continuously threatening to dispossess the Petitioner from the godown. The Respondent resisted the same by its reply dated 20 March 2009. By an affidavit dated 28 April 2009 the Petitioner even objected to the jurisdiction of sole Arbitrator to decide the reference. By order dated 2 May 2009, the learned Arbitrator rejected the objection on the ground of delay and further directed to proceed with the matter. 17 Admittedly, the Petitioner, pursuance to the various demands, raised towards the "rent", "licence fee", some time in July 2009. Ultimately, as on 16 September, 2009, the Petitioner handed over the possession of the godown and withdrew prayer clauses (a) to (c) of the statement of claim and proceeded for remaining prayers. Though objected, the counter claim was taken on record by the Arbitrator some time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r based upon the agreement and the law. 21 The Arbitrator decide its own jurisdiction and the direction to proceed, that itself is challengeable under Sections 16(6) and 34 of the Arbitration Act. The Petitioner has specifically raised the some objection in the present Petition with regard to the jurisdiction of the learned Arbitrator to adjudicate such disputes related to and between licensor and licensee and/or landlord or tenant relating to the recovery of the possession of the immovable property and of any licence fee or charges or rent thereof. 22 The learned counsel appearing for the Respondent pointed out that the specific clause of the agreement, whereby the relationship was recorded in writing was of "warehousing agent" (Petitioner) and"warehousing agency". It was further submitted that the warehousing activities were carried out in the name of the Respondent under their supervision; and the agent was not permitted anybody else, to occupy the premises. This nowhere intended to create licensor and/or licensee relationship at any point of time. The judgments were also cited apart from the provisions of Section 91 of the Evidence Act. It is settled that "The intention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Small Causes in Mumbai.". 25 In Motabhai Paras Private Limited v. Western Paper & Yarn Pvt.Ltd. 2012 (12) LJSOFT 166 (Arbitration Petition No.564/2009) decided on 20 October, 2012, I have observed, after taking note of various judgments of Supreme Court and of this Court, apart from the provisions of Transfer of Properties Act and Easement Act, revolving around the word "licence", in similarly situated objections, in the similar petition, in the following words: "23 As recorded above, the learned Arbitrator has not only awarded and decided the use and occupation charges, as the nomenclature was the service charges, but also passed the order of eviction by treating the Petitioner as trespasser. Therefore, once considering the nature of contract between the parties and the provisions of law read with the Judgments, I am inclined to observe that the agreement in question falls at least within the ambit of licensor and licensee relationship. It is definitely not a lease agreement. Merely because fixed timing was mentioned in the agreement to facilitate the Petitioner to occupy the premises on hourly basis and/or temporary basis, itself is not sufficient to accept the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter merely because the possession was handed over during the pendency of the arbitration proceedings. The orders passed by the Court protecting the possession based upon the Respondent's statement and the consent order so recorded, ought to have taken note of before proceeding with the matter in such fashion. I am inclined to observe here that the nomenclature of "warehousing agency and/or agent" itself is not sufficient to overlook the earlier orders passed by the Court and the exclusive possession of the premises and the regular claims of enhanced licence fee/rent. It is relevant to note that there is nothing pointed out to show that the Respondent was conducting business of warehousing or was in exclusive possession based upon the commercial warehousing scheme. The admitted facts and the materials are in support of the petitioner. 27 I have also observed in Motabhai Paras Private Limited (supra) in paragraphs 12 and 21 as under : "12 The Full Bench of this Court in Central Warehousing Corporation Vs. Fortpoint Automotive Pvt. Ltd . 2010(1) Bom. C.R. 560 has dealt with Section 41 of the Small Causes Court Act, and the provisions of the Arbitration Act, referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. The Petitioner has raised those grounds in the petition. Therefore, in view of the reasons so recorded above, I am inclined to observe that the sole Arbitrator has no jurisdiction to try and entertain the reference and as the same was beyond its competence and jurisdiction. Therefore, I am inclined to quash and set aside the award and also the consequential orders/reliefs so granted. This order, in no way, deny the rights of the Respondent to invoke the appropriate proceedings in accordance with law. The amount paid and/or received shall be subject to adjustment, if any. All points are kept open as there is no decision given on merits of the matters, including on limitation. The parties are at liberty to settle the matter. 30 Resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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