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Judgment
A.S. Bopanna, J. - The petitioner is before this Court assailing the cancellation letter dated 17-10-2013 at Annexure-P to the petition. In that light, the petitioner is seeking issue of mandamus directing the respondents to execute the fresh lease deed, register the same and handover the possession of the schedule premises. The lease deed is sought within one month after complying the Clause 1 of the lease deed dated 29-12-2012.
Petitioner is a Company incorporated under the provisions of the Companies Act, 1956, doing the business of Ports and Warehousing. They had entered into certain transaction with the respondent 1, a Government owned Company for taking on lease an area measuring 85,888 square feet. In that regard, the lease agreement dated 29-12-2012 was entered into between the petitioner and the first respondent. Though the terms of the agreement did not materialise and possession of the premises was not granted to the petitioner, the first respondent through the communication dated 17-10-2013 at Annexure-P has inform the petitioner that the agreement dated 29-12-2012 would stand cancelled. It is in that view, the petitioner is before this Court.
The respondents have filed their objections statement.
Among the other contentions which have been urged in the objection statement to justify their action, the first respondent at the outset has raised a contention that Clause 9 of the agreement provides the procedure for resolution of disputes and as such the instant writ petition would not be maintainable.
Since a primary objection has been raised to the maintainability of this writ petition, in view of there being an alternate remedy to resolve the issue, the said issue arises at the outset tor consideration.
The learned Counsel for the petitioner would however contend that such objection with regard to maintainability of the petition would not be sustainable since the agreement dated 29-12-2012 hod not come into force at all and the petitioner is seeking a direction against the respondents to execute a fresh lease deed. It is also contended that the communication dated 17-10-2013 (Annexure-P) is therefore not only contrary to law but without authority and the validity or otherwise of such communication in any event cannot be resolved in a dispute raised before the Arbitrator. Hence, it will have to be considered by this Court and in that light such communication is not justified is the contention. Consequently, the relief of directing the respondents by mandamus will have to be considered by this Court is the argument of the learned Counsel.
The learned Counsel for the respondents on the other hand would however refer to the clause in the agreement and seek to justify their contention that the instant writ petition would not be maintainable.
In order to take note of the clause as contained in the agreement, the same is extracted here below:
"Clause 9(2) : In case of dispute or difference arising between the lessor and the lessee relating to any matter arising out or connected with the agreement it shall be settled in accordance with the Arbitration and Conciliation Act of 1996. The dispute or difference shall be referred to a Sole Arbitrator. The Sole Arbitrator shall be appointed by the agreement between the parties."
The said clause provides that in case of dispute or difference arising between the lessor and the lessee relating to any matter, the same would have to be resolved by an Arbitrator. In that light, a perusal of the communication impugned at Annexure-P would disclose that the first respondent has in fact referred to Clause 5 of the same agreement and has indicated that the petitioner has not complied with the said term in the agreement and as such the agreement has been terminated. ''Therefore, in such circumstance, the question which would arise at the outset is as to whether such termination is after due compliance with the provision contained in Clause 8 of the same agreement or as to whether such termination made is contrary to the terms of the agreement and in that light whether the petitioner is entitled to the possession of the premises and the execution of a fresh agreement which is sought.
Therefore, in that light if the issue as raised is considered, the same would indicate that there is a dispute arising between the parties as to whether the respondent is not justified in implementing the agreement dated 29-12-2012 entered into between the parties at the first instance. Consequently, the issue is as to whether the termination as made is in terms of the provisions contained in the agreement itself. If the petitioner herein had complied with all the terms agreed therein and in that light if the termination is bad, certainly the issue in dispute would arise before an Arbitrator, who would consider as to whether the termination made through communication dated 17-10-2013 would be justified or not. Therefore, these are aspects which would have to be resolved in terms of the Arbitration clause.
The learned Counsel for the petitioner no doubt has relied on the decision of the Hon''ble Supreme Court in the case of Reva Electric Car Company (Private) Limited v. Green Mobile, AIR 2012 SC 739. Having perused the said decision, it is seen that the Hon''ble Supreme Court in a circumstance while considering a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 has indicated the extent to which the Court appoints the Arbitrator is to take note of the Arbitration clause contained in the agreement. It is pointed out that, without an}'' examination of the disputes, a consideration as to whether a dispute raised between the parties and whether the parties should be relegated to the remedy of Arbitration is required to be considered.
In view of the discussions made herein above, it would indicate that there is a dispute arising between the parties and until such dispute is resolved through Arbitration, this writ petition would not be maintainable for issuing such directions. Therefore, without expressing any opinion on the merits of the rival contentions put forth by the parties, it is held that the parties would have to get the same resolved in terms of the Arbitration clause contained in the agreement dated 29