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TMI Blog2023 (2) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... GMENT SACHIN DATTA, J. 1. The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 has been filed seeking appointment of an Arbitrator to adjudicate the disputes between the parties. The disputes between the parties have arisen in the context of a lease deed dated 15.12.2019 in respect of property bearing No. 26/7 (7-5), 8 (3-12), 13 (2-16), 14 (8-0) total measuring area 21 Kanal Marlekhewat No. 384, 387, Khata No. 422, 425 in Village Joshi Chauhan, District Sonepat, Haryana. 2. The petitioner is stated to be the owner of the aforesaid property by virtue of a registered sale deed dated 10.12.2019. The said sale deed has been placed on record by the petitioner. The respondent is stated to have been inducted as a tenant by virtue of the aforesaid lease deed dated 15.12.2019 in respect of area admeasuring approx. 25000 sq. feet on ground floor, 25000 sq. feet on first floor, total area 50000 sq. feet which also includes the mezzanine floor sides, washroom and rooms at the back, genset panel and the sundry assets area etc. at a monthly rent of Rs. 8,00,000/-(Eight Lakhs only) exclusive of all other charges. 3. It is submitted by the petitioner/lessor that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Ltd., 2020 SCC OnLine Del 472. 9. Having heard respective counsel for the parties, no merit is found in the contentions raised on behalf of the respondent. 10. The first contention of learned counsel for the respondent that Clause-25 in the said lease deed gives an option to the petitioner/lessor to either take recourse to the arbitration or pursue her remedies in a court of law, is misconceived and is based on a misreading of the Arbitration Clause. The clause unambiguously provides that any disputes arising with regard to interpretation and/or implementation of terms and conditions of this deed the same shall be referred to an arbitrator under the Arbitration and Conciliation Act, 1996, whose decision shall be final and binding on both the parties . The later part of the clause i.e. the words and/or the same may be defended subject to Delhi Court Jurisdictions only , are evidently, intended to convey that any decision of the arbitrator would be subject to jurisdiction of the Delhi Courts. The Clause cannot be construed as giving an option to any party to either take recourse to arbitration or alternatively, file a civil suit. 11. The reliance placed by learned counsel for res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be the sole remedy. It appears that the parties agreed that they can also go to arbitration also in case the aggrieved party does not wish to go to a Civil Court by way of a suit. But in that event, obviously, fresh consent to go to arbitration is necessary. Further, in the present case, the same Clause 5, so far as the Venue of arbitration is concerned, used word 'shall'. The parties, in my view, must be deemed to have used the words 'may' and 'shall' at different places, after due deliberation. 13. It is evident from a bare perusal of the clauses that fell for consideration in Wellington Associates (supra) that the same is not couched in mandatory terms as is evident from the use of the word may . It was on that basis, coupled with the stipulation as contained in Clause 4 that fell for consideration in that case, that the Supreme Court found that there was no mandatory stipulation binding the parties to Arbitration, and that arbitration was not intended to be the sole remedy of the parties. On the contrary, in the present case, the arbitration clause is couched in mandatory terms and clearly provides that if any dispute may arise in regard to interpreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Property Act, like all other Acts, has a public purpose, that is, to regulate landlord-tenant relationships and the arbitrator would be bound by the provisions, including provisions which enure and protect the tenants. 80. In view of the aforesaid, we overrule the ratio laid down in Himangni Enterprises [Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 : (2018) 1 SCC (Civ) 82] and hold that landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration. 15. In Suresh Shah Vs. Hipad Technology (India) (P) Ltd. (2021) 1 SCC 529, taking note of the judgment of the Supreme Court in the case of Vidya Drolia (supra) in the context of disputes between landlords and tenants, and considering the provisions incorporated in Sections 114 and 114A of the Transfer of Property A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to arbitration only. Clause 27 does not control the amplitude and width of the Arbitration stipulation incorporated in Clause 25. The arbitration clause is binding and operable not only qua the claims of the petitioner but also qua the claims of the respondent and as such, there is no question of any classification of claims. 18. The judgment in the case of Shri Chand Construction and Apartments Private Limited and Another Vs. Tata Capital Housing Finance Limited 2020 SCC OnLine Del 472, relied upon by the respondent is wholly inapplicable to the facts of the present case inasmuch as the arbitration clause that fell for consideration in the case was as follows: 12.18 DISPUTE RESOLUTION If any dispute, difference or claim arises between the parties hereto in connection with this Agreement or the security hereof or the validity, interpretation, implementation or alleged breach of this Agreement or anything done or omitted to be done pursuant to this Agreement or otherwise in relation to the security hereof, the parties shall attempt in the first instance to resolve the same through negotiation/ conciliation. If the dispute is not resolved through negotiations/ conciliation wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have effect in the event of the claimants therein becoming entitled to invoke the provisions of SARFAESI Act. It was contended by the defendant in that case, that even if the defendant's claims were held to be non-arbitrable, the plaintiff's claim/s would nonetheless be subject to Arbitration. It was in the context of such a submission that the Court observed as under:- 26. I have enquired from the counsel for the defendant, that once the defendant has come under the purview of the SARFAESI Act, whether not the second part of the clause aforesaid in the agreement would apply, ceasing the effect of the arbitration clause. 27. The counsel for the defendant states that the arbitration clause will cease to have effect only as far as the claim of the defendant against the plaintiffs is concerned but will continue to have effect as far as the claims of the plaintiffs against the defendant are concerned. 28. On enquiry, whether there can be a valid arbitration clause providing for arbitration of claims of one of the party and providing for the remedy of the Court or any other for a for claims of the other party, the counsel for the defendant is unable to cite any law. 29. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the parties to the arbitration clause and not to permit them to avoid their bargain of arbitration by bringing civil action involving multifarious causes of action, parties and prayers. 21. Also, in MTNL v. Canara Bank, (2020) 12 SCC 767, it was observed as under: 9.5. A commercial document has to be interpreted in such a manner so as to give effect to the agreement, rather than to invalidate it. An arbitration agreement is a commercial document inter partes, and must be interpreted so as to give effect to the intention of the parties, rather than to invalidate it on technicalities. 22. In A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386, Dr D.Y. Chandrachud, J. in his separate opinion observed that: 53. The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties wish to face issues as to the validity of their contract decided by one tribunal and issues as to its meaning or performance decided by another, they must say so expressively. Otherwise, they will be taken to have agreed on a single tribunal for the resolution of all such disputes. 26. With regard to the view taken in some older authorities to the effect that the arbitration clauses must be interpreted restrictively, it is stated by Gary B. Born in International Arbitration: Law and Practice, Third Edition as under: The restrictive presumption is generally explained on the grounds that arbitration is a derogation from otherwise available access to civil justice and the natural judge of the contract, and that such derogations must be construed narrowly. Thus, in an older decision, a French appellate court declared that [t]he arbitration agreement must be strictly interpreted as it departs from the norm-and in particular from the usual rules as to the jurisdiction of the courts. 'This restrictive interpretative presumption is archaic and out of step with the ordinary intentions of commercial parties; it is generally not applied in contemporary decisions. 27. It is also note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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