This judgment quashed the order remanding the suit for arbitration and restored the civil suit, holding that while rent disputes are arbitrable, the issue of forceful eviction remains a civil court jurisdiction matter.
The order allowing the remand to arbitration was set aside, and the suit was restored to the trial court for fresh consideration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938
OP(C).No. 3087 of 2016 ()
IA NO. 3806/2016 IN OS NO. 183/2016 OF I ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
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PETITIONER(S)/RESPONDENT-PLAINTIFF:
HARIPRASAD.K,S/O. HARIDASAN K., AGED 31 YEARS, BSNL STAFF QUARTERS NO.A-48, H.NO.56/2415, PANAMPILLY NAGAR, KOCHI - 36 (SENIOR SHIP DRAUGHTSMAN(ELECTRICAL) GR. V., COCHIN SHIPYARD LTD., KOCHI -15)
BY ADV. DR.V.N.SANKARJEE
RESPONDENT(S)/PETITIONER-DEFENDANT:
BHARATH SANCHAR NIGAM LTD, REPRESENTED BY THE ASSISTANT GENERAL MANAGER (BUILDING & PLANNING), OFFICE OF PGMT, BSNL, BSNL BHAVAN, KALATHIPARAMBU ROAD, KOCHI - 682 016.
BY SRI.K.M.JAMALUDEEN, SC, BSNL
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C).No. 3087 of 2016 ()
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: TRUE COPY OF THE PLAINT DATED 30.1.2016 IN O.S. NO. 183/2016 OF THE I ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P2: TRUE COPY OF THE MODIFIED POLICY DATED 6.8.2015 ISSUED BY THE RESPONDENT. EXHIBIT P3: TRUE COPY OF THE LEASE AGREEMENT DATED 3.5.2015. EXHIBIT P4: TRUE COPY OF THE PETITION DATED 15.5.2016 IN I.A. NO.3806/2016 FILED BY THE RESPONDENT IN EXT.P-1 SUIT. EXHIBIT P5: TRUE COPY OF THE COUNTER AFFIDAVIT DATED 24.7.2016 IN EXT. P4. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 7.9.2016 IN I.A. 3806/2016 FILED BY THE RESPONDENT IN EXT.P-1 SUIT. RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S.TO JUDGE
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K. RAMAKRISHNAN, J.
....................................... O.P.(C).No.3087 of 2016
........................................ Dated this the 5th day of December, 2016.
JUDGMENT
This petition was filed by the petitioner challenging the order allowing the application filed under Section 8 of the Arbitration and Conciliation Act by the 1st Additional Munsiff Court, Ernakulam under Article 227 of the Constitution of India.
2.The petitioner is the plaintiff in O.S.183/2016 on the file of the 1st Additional Munsiff Court, Ernakulam. The suit was filed by the petitioner seeking a relief of injunction. He filed the suit covered by Ext.P1 in this case for an injunction restraining the defendant from forcibly evicting him from the plaint schedule building or from demanding enhanced rent other than the rent fixed by Ext.P3 agreement dated 3.5.2015 or fair rent to be fixed by the competent court or disturbing or disconnecting the amenities including electricity water etc., to the plaint schedule property.
O.P.(C).No.3087 of 2016 2
legality of agreement and collection of rent and not the eviction proceedings alone and the matter is arbitrable one and closed the suits. This was challenged by the petitioner by filing this application.
O.P.(C).No.3087 of 2016
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submission has been denied by the counsel for the petitioner.
2507)], the Supreme Court has considered the question as to what are the nature of disputes that can be referred for arbitration and certain areas where legislature intended to do certain things by virtue of special Tribunal, those aspects should not be referred for arbitrator as Arbitral Tribunal has no jurisdiction to entertain the same. This aspect has been considered by the Apex Court in paragraph 21 and 22 of the judgment which reads as follows:-
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21. The term 'arbitrability' has different meanings in different contexts.
The three facts of arbitrability, relating to the jurisdiction of the arbitral tribunal, are as under:(i) whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the arbitral tribunal) or whether they would exclusively fall within the domain of public for a (courts). (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the dispute are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the 'excepted matters' excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the arbitral tribunal, or whether they do not arise out of the statement of claim and the counter claim filed before the arbitral tribunal. A dispute, even if it is capable of being decided by arbitration and falling within the scope of arbitration agreement, will not be 'arbitrable' if it is not enumerated in the joint list of disputes referred to arbitration, or in the absence of such joint list of disputes, does not form part of the disputes raised in the pleadings before the arbitral tribunal. 22. 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 public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication.
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Adjudication of certain categories of proceedings are reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by a public fora (courts and tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, u/s 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well recognized examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which given rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.
9. The same view has been reitarated in the decision reported in Vimal Kishor Shah and Others v. Jayesh Dinesh Shah and Others [(2016) 8 (SCC) 788].”
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agreement. Clause (4) of the lease agreement between the parties reads as follows:-
Provided always and it is hereby agreed if at any time they shall arise any dispute, doubt, difference or question with regard to the interpretation or in respect of the right, duties and liabilities of the parties hitherto or anyway touching or arising out of these presence or otherwise in relation to the demise premises, then every such disputes, difference or question (except the decision where is herein expressly provided for) shall be referred to the sole or arbitration of the principal, General Manager, Telecom, BSNL Ernakulam and the award passed by the arbitrator shall be final and binding on both the parties to the agreement.
So under such circumstances the order passed by the court
O.P.(C).No.3087 of 2016 7
below is unsustainable in law and the same is set aside and the matter is sent back to the court below for fresh consideration on this aspect. If the arbitrator has already been appointed and if the parties agreed before that court that they have no intention to evict forcefully till the arbitrator decides the question regarding the rate of rent payable, then that can be considered by that court and pass appropriate orders in the suit with liberty for the petitioner to challenge the jurisdiction of the forum through which they are going to evict later.
With the above observation and direction the petition is disposed of accordingly. The court below can restore the suit and consider the matter afresh in the light of the observation made above and pass appropriate orders afresh in accordance with law.
Parties are directed to appear the court below on 21.12.2016. Registry is directed to communicate this judgment to the concerned court immediately.
Sd/
K. RAMAKRISHNAN, JUDGE.
cl
3 issues framed by the court
Whether a civil suit regarding consent to enhanced rent and applicability of a modified scheme is arbitrable under the Arbitration and Conciliation Act.
Whether the civil court has jurisdiction to decide on the apprehension of forceful eviction in a tenancy matter governed by an arbitration clause.
Whether the trial court erred in referring the entire suit including the relief against forceful eviction to arbitration.
Colour shows how this judgement treated each authority
Booz Allen and Hamilton INC V. SBI Home Finance Ltd.Relied on¶33
Booz Allen and Hamilton INC V. SBI Home Finance Ltd., and Others (AIR 2011 SC 2507) · Who else cites this
Vimal Kishor Shah and Others v. Jayesh Dinesh Shah and OthersReferred¶48
Vimal Kishor Shah and Others v. Jayesh Dinesh Shah and Others [(2016) 8 (SCC) 788] · Who else cites this
2 provisions across 2 enactments
Hariprasad.K
Bharath Sanchar Nigam Ltd
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
