Sunil Kumar Sharma vs Perfexa Solutions Pvt. Ltd.

Hemant Gupta, J.—The petitioner has sought appointment of an Arbitrator in terms of the agreement between the parties (Annexure P-1), dated 27.01.2006.

By virtue of the said agreement, an area measuring 15,422 Sq.ft. together with the right to avail various common services and facilities in the Complex and 15 care parks were leased out to the respondent for a period of 3 years. It is the case of the petitioner that on account of non-payment of the lease amount, in terms of the aforesaid agreement, the matter is required to be decided by an Arbitrator in terms of the Clause 102 of the said agreement.

In reply, it has been pointed out that the respondent has filed a suit for declaration and for mandatory injunction challenging the claim of Rs. 72.75 lakhs on account of maintenance and operation charges on the part of M/s. Unising Projects Pvt. Ltd. Therefore, the dispute between the parties is not required to be referred to the Arbitrator as the matter is already pending before the Civil Court.

The said suit for declaration is on an independent cause of action and has nothing to do with the non-payment of lease amount in pursuance of a separate agreement of lease entered between the parties. The petitioner has sought arrears of lease amount payable in terms of lease agreement dated 27.1.2006. The dispute is to be adjudicated upon in terms of Clause 15.2 of the agreement. Therefore, such dispute is required to be referred for adjudication to an Arbitrator.

Learned Counsel for respondent has referred to Clause 15.4 of the agreement, which contemplates appointment of two Arbitrators, one to be appointed by each party The Arbitrators are required to appoint an umpire, if the Arbitrators appointed by each party fail to arrive at consensus for a common umpire. In my view, such Clause has been rendered redundant in view of the fact that the petitioner has sought appointment of an Arbitrator from this Court after parties failed to appoint Arbitrators in terms of the agreement.

Learned Counsel for the respondent has then argued that the area over which the buildings have been constructed now falls within the Municipal limits, therefore, the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are applicable. Thus the jurisdiction of Civil Court including by Arbitration is barred. The dispute between the parties cannot be referred to an Arbitrator on the basis of the said agreement as such dispute is required to be decided by the Rent Controller appointed under the aforesaid Act.

The said argument raised by the learned Counsel for the respondent is not tenable. The petitioner is not claiming the eviction of the tenant on any of the grounds available to the landlord under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973. In fact, the petitioner has sought recovery of arrears of lease money in terms of the agreement. Such dispute is not a dispute which falls within the exclusive jurisdiction of the Rent Controller appointed under the aforesaid Act.

Therefore, in exercise of the powers conferred u/s 11(6) of Arbitration and Conciliation Act, 1996, Shri T.C. Gupta, Retd. Addl. District Judge, R/o Flat No. 148, Hope Apartments, Sector 15-Part II, Gurgaon, is appointed as an Arbitrator. The Arbitrator shall be free to fix his fee keeping in view the claim amount as also the time that he would require to adjudicate upon the same.

Parties through Counsel are directed to appear before the Arbitrator on 2.3.2009 for further proceedings.