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TMI Blog2017 (12) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... . D. Krishna Kumar, J. For Petitioner: Mr. Vignesh Venkat For Respondents: Mr. L.P. Shanmugasundaram, Spl. Govt. Pleader for R1 and R2 ORDER The petitioner has filed this writ petition seeking to quash the order of the 1st respondent dated 27.10.2016 passed in A.R.C. No.215 /2015/Sa.Pa.1. 2. Brief facts of the case is as follows : The petitioner firm entered into a rental agreement on 06.11.2003, for renting a portion of the second respondent premises, for a period of five years. The said agreement period expired on 15.11.2008. Thereafter, the rental agreement was extended for a further period of five years from 01.11.2008 to 30.10.2013. The said rental agreement expired on 30.10.2013. As there was a dispute in payment of rent, the petitioner sent a legal notice to the 2nd respondent on 22.11.2014, enclosing two demand drafts. The said demand drafts were returned. Therefore, the petitioner preferred RCOP No.71 of 2015 before the Rent Control Authority on 18.02.2015. Without disclosing the aforesaid fact, the 2nd respondent made Arbitration Reference Petition under Section 90 of the Tamil Nadu Co-operative Societies Act, 1983 in ARC No. 215/2015. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was 'arbitrable' i.e. capable of being adjudicated by a private forum (Arbitral Tribunal). In this context, the Court carried out detailed discussion on the term 'arbitrability' by pointing out three facets thereof, viz.: 1) whether the disputes are capable of adjudication and settlement by arbitration? 2) whether the disputes are covered by the arbitration agreement? 3) whether the parties have referred the disputes to arbitration? 16. As we are concerned with the first facet of the arbitrability of dispute, on this aspect the Court pointed out that in those cases where the subject matter falls exclusively within the domain of public fora, viz. the Courts, such disputes would be non-arbitrable and cannot be decided by the Arbitral Tribunal but by the Courts alone. The justification and rationale given for adjudicating such disputes through the process of Courts, i.e. public fora, and not by Arbitral Tribunals, which is a private forum, is given by the court in the following manner: 35.The Arbitral Tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide Black's Law Dictionary.) 38. Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable. ..... 29. Ordinarily every civil or commercial dispute whether based on contract or otherwise which is capable of being decided by a civil court is in principle capable of being adjudicated upon and resolved by arbitration subject to the dispute being governed by the arbitration agreement unless the jurisdiction of the Arbitral Tribunal is excluded either expressly or by necessary implication. In Booz-Allen and Hamilton Inc. v. SBI Home Finance Ltd.[13], this Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. An Arbitrator notwithstanding any agreement between the parties would have no jurisdiction to order winding up of a company since such power is conferred on the Company Court. Resort to Section 8 application under the Arbitration and Conciliation Act, 1996 for referring a winding up petition to arbitration untenable. By analysis, the arguments culled out is that ejectment can be ordered only through Court process. The Arbitral Tribunal is not a court and thus has no power to evict a person from the disputed property where possession is duly delivered to tenant in accordance with laws governing tenancy operated through the Rent Controller constituted under statutory tenancy laws. 11. The contract signed between the parties in this case is no better than a rent note or a lease agreement subject to the local rent laws permitting actions to be brought before the Rent Controller or through the due process of law ignited in civil courts where rent laws are not applicable then remedies can be sought through notices served under Section 106 of the Transfer of Property Act determining tenancy, followed by a civil suit praying for eviction by grant of a permanent and mandatory injun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs is not a dispute touching the business of the society. I also agree that the court of small causes has exclusive jurisdiction under Section 28 of the Rent Act to entertain a proceeding by a landlord for ejectment of a tenant. A dispute concerning the ejectment of a tenant by a landlord is outside the purview of Section 91 of the Maharashtra Co-operative Societies Act. It has also been argued that, as the lease under which the contesting respondent is claiming was not executed by the owner in his capacity as a member of the society, there is no dispute between the society and a person claiming through a member. On this last question, I express no opinion. Having regard to our findings on the other two points, the appeal must fail. I, therefore, agree to the order proposed by my learned brother. Also in the case of Natraj Studios (P) Ltd., vs. Navrang Studios anr., reported in AIR 1981 SC 537, in paragraphs 17, 18, 21 24 it is held as follows by the Hon'ble Supreme Court : 17. The Bombay Rent Act is a welfare legislation aimed at the definite social objective of protection of tenants against harassment by landlords in various ways. It is a matter of public policy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to institute the suit, on the plaint allegations, in the ordinary Civil Court only. In such a suit the defendant may raise the plea that he is a tenant and not a trespasser. The defendant's plea will not straightaway oust the jurisdiction of the ordinary Civil Court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other jurisdictional questions may have to be determined by the Court where it falls for determination-be it the Court of Small Causes or the ordinary Civil Court. If the jurisdictional question is decided in favour of the Court of exclusive jurisdiction the suit or proceeding before the ordinary Civil Court must cease to the extent its jurisdiction is ousted. 24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of S.28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Jugraj Jain Ors. (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner being a member, any dispute between the member and the Society has got to be adjudicated under the machinery provided under the Act by virtue of Section 156 of the Act. The jurisdiction of the Civil Court is ousted and the suit filed by the petitioner is not maintainable. The respondent also stated that the petitioner is liable to pay a sum of ₹ 8029/- as municipal tax and ₹ 34,275/- as rent arrears and thereby he has been defaulted in payment of rent and tax amount. 18. The Tenancy between the petitioner and the respondent is in dispute and the said dispute of a civil nature and it would not take away the right of the parties. As the dispute between the parties is of a civil dispute in simplicitor, the right of the petitioner to approach the civil court cannot be held to be a bar and the said relief cannot at all be granted by the machineries created under the Act and in view of the same, the petitioner is well within his right to file the suit before the civil Court and the Court below has fallen into an error, in coming to the conclusion that the bar under Section 156 of the Act is applicable to the case on hand, is not correct and the said order is liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofar as the eviction of a tenant, fixation of fair rent of a building etc. are concerned and therefore that Act alone will cover the dispute in that field. Therefore I have no hesitation to hold that the rent control proceedings before the 14th Small Causes Court (Rent Controller) are very much maintainable and the same has to be continued by the parties despite the pending arbitration proceedings. 20. That apart assuming that the eviction issue is also decided by the arbitrator and in such circumstances if any award is passed for eviction by the arbitrator, whether the same will be binding and enforceable in the light of the specific provisions of the Act, 1960. The answer is only no as no tenant can be evicted except in accordance with the the Act, 1960, once the Act is notified to that particular area. Therefore no useful purpose would be served even if the issue of eviction is agreed to be referred to arbitration. 6. In the light of the aforesaid facts and the decisions, the impugned proceedings issued under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983 by the respondents, is without jurisdiction and therefore the impugned summons issued by the 1st respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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