9911796707
TMI Blog2000 (7) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... hat M/s. S.S. Fasteners (plaintiff) filed a suit against Sat Paul Verma (defendant) for permanent injunction restraining him from Interfering in the peaceful possession of the plaintiff over the tenanted, premises and from dispossessing it therefrom except in due course of law. In the said suit, it was alleged that it had taken the entire disputed premises on lease from the defendant on a monthly rent of Rs. 2900/- in the year 1987 and since then, it was in possession of the premises and the plaintiff had installed machinery for the manufacture of machine screws. It was alleged that in due course, rent was increased to Rupees 6450/- per month and that the rent was paid up to December, 1996. It was further alleged that on 24-1-1997, the defendant told the plaintiff to vacate the disputed premises, falling which he would be evicted by use of force. Accordingly, the plaintiff filed a suit for permanent injunction restraining the defendant from dispossessing him except in due course of law and further restraining from interfering in the peaceful possession of the plaintiff over the suit property. Along with the suit, the plaintiff had also filed an application for the grant of ad inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the licensee having failed to vacate the premises, the matter was referred to the sole Arbitrator, who issued notice to the licensee but nobody appeared to contest and instead the arbitrator was advised not to enter into arbitration. Since no one had put in appearance on behalf of the licensee before the arbitrator, the arbitrator held the proceedings ex parte against the licensee and passed an ex parte Award on 28-7-1997 directing the licensee to hand over the possession and also to pay compensation for the unauthorised use of the area in its possession after the revocation of the licence. Even after the Award dated 28-7-1997 was passed by the Arbitrator, no action was taken by the licensee to get the said Award set aside under Section 34 of the Arbitration and Reconciliation Act, 1996 (hereinafter referred to as the Act of 1996). Subsequently, on 15-6-1998, the owners filed execution petition before the civil Court for execution of the ex parte Award dated 28-7-1997. In the said execution proceedings, the licensee filed written reply, taking up preliminary objection to the effect that the arbitrator had no jurisdiction to pass the Award against the licensee in view of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the sole arbitration In view of the arbitration clause. Since the licensee did not vacate the premises after 31-12-1996 in spite of notice dated 24-1-1997 having served upon it, Sat Paul Verma, general attorney of M/s. Allwyn Poly Packs Pvt. Ltd. invoked the arbitration clauses and referred the matter to the sole arbitrator namely Sh. P. D. Mongia. On receipt of the reference, along with the statement of claim and other documents, the arbitrator sent notice of the statement of claim to the licensee, in the arbitration proceedings and in reply to the notice, the licensee appeared before the arbitrator and instead of replying the claim petition, the licensee told the arbitrator not to enter upon the arbitration. However, no reply to the claim petition was filed by the licensee and also not appear before the arbitrator, in spite of subsequent notices and accordingly the licensee was proceeded against ex parte. Thereafter, the owners produced evidence before the arbitrator in support of their claim. The arbitrator, vide its Award dated 28-1-1997, held that M/s. S. S. Fasteners through Ashok Sachdeva, its partner, was the licensee in respect of the area DEGH adjoining the office wall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioners were tenants over the industrial shed in question. Reliance was placed on Bahadur Singh v. Muni Subrat Dass (1969) 1 SCWR 51. On the other hand, learned counsel for the respondents submitted be-fore me that admittedly the licence deed dated 2-1-1996 was executed between the parties and in the said licence deed, there was an arbitration clause. It was submitted that since the licensee had not vacated the premises after the expiry of the licensed period and even after the licence was revoked vide notice dated 24-1-1997, M/s. Allwyn Poly Packs Pvt. Ltd. through its general attorney Sat Paul Verma invoked the arbitration clause and referred the matter to the arbitrator. It was submitted that in spite of the notice having been served upon the licensee by the arbitrator, the licensee did not contest the case before the arbitrator and finally the Arbitrator gave its Award dated 28-7-1997, holding that M/s. S. S. Fasteners through Ashok Sachdeva, its partner, was the licensee over a portion of the industrial shed and that the licence expired on 31-12-1996 and the licence was validly revoked vide notice dated 24-1-1997 and that after the expiry of the said revocation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 534 of 1999). 11. As referred to above, the Arbitrator, in its Award dated 28-7-1997, which has assumed the position of a civil Court decree and has become final (having not been challenged under Section 34 of the Act of 1996), had held that M/s. S. S. Fasteners, through its partner Ashok Sachdeva, was a licensee over a portion of the industrial shed in question and the licence period had already expired. This finding given by the arbitrator having become final between the parties, the present petitioners could not be allowed to urge that they are tenants over the portion in question in respect of the industrial shed in question and not licensees. In (1970) 1 SCC 670 (supra), it was held by their Lordships of the Supreme Court that a Court executing a decree could not go behind the decree between the parties and it might take the decree according to its tenor and could not entertain any objection that the decree was incorrect in law or in facts. It was further held that until the decree was set aside in appeal or revision, a decree even if it be erroneous was still binding between the parties. It was further held that where the objection as to the jurisdiction of the Court to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 SCC 670 (supra), 14. The authority (1969) 1 SCWR 51 (supra) relied upon by learned counsel for the petitioners, in my opinion, would be of no help to the petitioners. In the reported case, it was held by their Lordships that the objection as to the validity of the Award could not be entertained in execution proceedings and all the questions regarding validity of the Award had to be determined by the Court in which the Award was filed and by no other Court. It was further held that after a decree was passed on the Award, it was not open to question the validity of the Award and that between the parties, the decree conclusively determined that the Award was valid nor could the decree be pronounced to be a nullity on the ground that the Award was invalid. This finding was given by their Lordships while considering the provisions of the Arbitration Act, 1940. It was further held by their Lordships that the provisions of the Rent Act prohibited the Court from passing a decree or ordering for recovery of possession of any premises in favour of the landlord and against the tenant unless the Court was satisfied that a ground of eviction existed. In the reported case, the decree was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents was in unauthorised possession of the present petitioners. So far as the portion which was on licence with the petitioner is concerned, in my opinion, there will be no question of granting any ad interim injunction in favour of the plaintiff-petitioner in respect of the said portion, considering that the Award was given by the arbitrator, which had become final as it was not sought to be set aside under Section 34 of the Act of 1996 and was sought to be enforced under Section 36 of the said Act. Furthermore, under Section 16 of the Act of 1996, the Arbitral Tribunal is competent to rule on its own jurisdiction, with respect to the existence or validity of the arbitration agreement and plea that the Arbitral Tribunal does not have jurisdiction shall be raised before the arbitrator and the Arbitral Tribunal shall decide on this plea and where the Arbitral Tribunal takes a decision rejecting the plea, it can continue with the arbitral proceedings and make an arbitral award. It is further provided therein that a party aggrieved by such an arbitral award can make an application for setting aside such an Award in accordance with Section 34 of the said Act. Section 5 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same from the petitioner, who was in unauthorised possession thereof and no injunction could be granted against the true owner. Reliance was placed on Premji Ratansey Shah v. Union of India, (1994) 5SCC 547 : (1995 AIR SCW 2425) and DTTDC v. DR Mehra and Sons, AIR 1996 Delhi 351. 21. After hearing both the sides and perusing the record, in my opinion, the plaintiff-petitioner is entitled to the grant of ad interim injunction in respect of the remaining portion of the industrial shed (other than the portion which was the subject-matter of the licence deed and the arbitration award). It is the admitted case of the respondent that the plaintiff-petitioner was in possession of the said portion of the industrial shed. Even the matter was reported to the police. Even the local Commissioner, who was appointed by the arbitrator, in his report had submitted that the petitioner was in possession of the entire property. Under these circumstances, in my opinion, the plaintiff-petitioner could not be dispossessed from the said portion of the industrial shed, except in due course of law. This is especially so, when it is yet to be determined, with regard to the circumstances under which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. 23. In the present case, it is not the case of either of the party that the plaintiff-petitioner was a licensee over the remaining portion of the industrial shed in question. That being so, the law laid down by the Delhi High Court would have no application to the facts of the present case. 24. It was submitted before me by learned counsel for the respondent that this Court should not interfere with the order passed by the lower appellate Court while deciding the appeal against the order passed by the trial Court. Reliance was placed on The Managing Director, Hindustan Aeronautics Ltd. V. Ajit Prasad Tarway AIR 1973 SC 76. However, I find no merit in this submission of the learned counsel. In the present case, the lower appellate Court while accepting the appeal and setting aside the order passed by the trial Court, had proceeded to consider the question regarding the grant of ad interim injunction only in respect of the said portion of the premises in question, which was the subject-matter of the licence deed and the arbitration award. However, the fact remains that the plaintiff had filed the suit in respect of the entire property covered by the industrial shed in question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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