A. Syam v. Bharat Sanchar Nigam Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938** ## **OP(C).No. 3051 of 2016 (O)** **--------------------------I.A. NO.4017/2016 IN OS. NO.115/2016 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM. .......** ## **PETITIONER/RESPONDENT-PLAINTIFF:** **-----------------------------------------------------------** **A. SYAM (INCORRECTLY SHOWN AS A.SATHYAN IN THE ORDER), S/O. ANANTHAKRISHNA KURUP, AGED 32, QUARTER NO.A8, C.C.NO.56/2357, BSNL QUARTERS, PANAMPILLY NAGAR, KOCHI-682 036, (WEAPON FITTER, NAVAL SHIP REPAIR YARD, NAVAL BASE, KOCHI-682 004).** **BY ADV. DR.V.N.SANKARJEE.** **RESPONDENT/PETITIONER-DEFENDANT: --------------------------------------------------------------** **BHARATH SANCHAR NIGAM LIMITED, REPRESENTED BY THE ASSISTANT GENERAL MANAGER, (BUILDING & PLANNING), OFFICE OF PGMT, BSNL, BSNL BHAVAN, KALATHIPARAMBU ROAD, KOCHI-682 016.** **BY ADV. SRI.K.M.JAMALUDEEN, SC.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **OP(C).No. 3051 of 2016 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1 TRUE COPY OF THE PLAINT DT. 25-01-2016 IN OS.115/2016 OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM.** - **P2 TRUE COPY OF THE MODIFIED POLICY DT. 06-08-2015 ISSUED BY THE RESPONDENT.** - **P3 TRUE COPY OF THE LEASE AGREEMENT DT. 01-12-2015.** - **P4 TRUE COPY OF THE PETITION DT. 15-05-2016 IA 4015/2016 FILED BY THE RESPONDENT IN EXT.P1 SUIT.** - **P5 TRUE COPY OF THE COUNTER AFFIDAVIT DT. 25-07-2016.** - **P6 TRUE COPY OF THE ORDER DT. 30-08-2016 IN IA.4017/2016 FILED BY THE RESPONDENT IN EXT.P1 SUIT.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **K.RAMAKRISHNAN,** ## **-------------------------------------------------O.P.(C) Nos.3051 of 2016 ----------------------------------------------** _Dated this the 1[st] 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 Principal Munsiff Court, Ernakulam under Article 227 of the Constitution of India. 2. The petitioner is the plaintiff in O.S.115/2016 on the file of the Principal 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 01.12.2015 or fair rent to be fixed by the competent court or disbursing or disconnecting the amenities including electricity water etc., to the plaint schedule property. 3. The respondent entered appearance and filed Ext.P4 application under Section 8(2) of the Arbitration and Conciliation Act, challenging the maintainability of the suit before the civil court in view of clause (4) in the lease agreement as I.A.4017/2016 in O.S.115/2016 and Ext.P5 objection to the same was filed by the petitioner, stating that the arbitration clause is not applicable to the _**O.P.(C) Nos.3051 of 2016**_ 2 proceedings. But the court below by Ext.P6 order allowed the application holding that the substantial question to be considered is 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. 4. Heard Sri.Dr.V.N.Sankarjee counsel appearing for the petitioner and Sri.K.M. Jamaludheen, Standing Counsel appearing for the respondent. 5. The counsel for the petitioner submitted that there are two reliefs claimed in the petition one against forceful eviction and other collection of rent other than the rent mentioned in the agreement unless the rent fixed payable by the competent authority. As regards the eviction is concerned, it is not a arbitrable issue and it cannot be gone into by the Arbitral Tribunal as has been held in the decision reported in _**[Booz Allen and Hamilton INC V. SBI Home Finance Ltd., and Others (AIR 2011 SC 2507)].**_ The court below was not justified in allowing the application as such and the court below ought to have held that, the suit is maintainable as against the main relief of forceful eviction. 6. On the other hand, the counsel for the respondent submitted that, he filed an affidavit stating that the respondent has no intention to forcefully evict him and the question regarding what is the _**O.P.(C) Nos.3051 of 2016**_ 3 rate of rent payable can be decided by the Arbitrator and he is not paying rent, even the agreed rent, for a long period which submission has been denied by the counsel for the petitioner. 7. It is an admitted fact that the petitioner in this case has taken the Government quarters belonging to the respondent as per the agreement mentioned in the petition on a particular rate of rent. It is also not in dispute that he received notice from the respondent seeking enhanced rate of rent and also stating that if the rent is not paid at the enhanced rate claimed, they will be taking steps to evict him from the property. It is at that stage that the present suit have been filed by the petitioner seeking intervention of the civil court restraining the respondent from forcefully evicting him from the plaint schedule property and also seeking injunction restraining them from asking for enhanced rate of rent as claimed in the notice as according to him as per the modified scheme, the respondent is not entitled to get so much rent. 8. In the decision reported in _**[Booz Allen and Hamilton INC V. SBI Home Finance Ltd., and Others (AIR 2011 SC 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 _**O.P.(C) Nos.3051 of 2016**_ 4 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:- _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_ 5 ## _**O.P.(C) Nos.3051 of 2016**_ _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. 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. 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]”._ 9. This shows that the eviction of tenancy matters governed by special statue where the tenant enjoys statutory protection against _**O.P.(C) Nos.3051 of 2016**_ 6 eviction, only specified courts are conferred with jurisdiction to grant eviction or to decide the dispute. Since as regards the claim for enhanced rent is concerned, parties are bound by the 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._ 10. As regards the forceful eviction is concerned, the Arbitral Tribunal cannot go into that aspect in view of the dictum laid down in the decision cited supra. But as regards the rate of rent payable, what is the rate at which the rent has to be paid and whether the modified scheme is applicable to them etc., are matter to be referred for arbitration as it is a dispute regarding the right and liability of the parties arising under the agreement. So to that extent the civil court cannot go into that aspect and parties will have to move the arbitrator for that purpose. Here the question is whether the petitioner's apprehension of forceful eviction which the defendants are not entitled to do is genuine or not and the petitioner is entitled to get a decree for _**O.P.(C) Nos.3051 of 2016**_ 7 the same, to that extent, the jurisdiction of the civil court is not ousted by the arbitration clause and the court below should not have allowed the application as such closing the suit referring the matter to arbitration as such. The dictum laid down in the decision reported in _**Sundaram Finance Ltd., and Others v. T. Thankam**_ (AIR 2015 SC 1303) has been wrongly interpreted by the court below. In this case, the main relief claimed is against forcible eviction which aspect can be considered only by the court below and not by the Arbitral Tribunal. The question as to whether the respondent is entitled to get enhanced rent or the scheme relied on by the petitioner is applicable to the building etc. are matter incidental question to be considered and the civil court cannot go into that question in view of the arbitration clause. If the reliefs are severable in nature and the main relief cannot be considered by the arbitral tribunal, then civil courts jurisdiction is not ousted. In such circumstances, Section 8(2) of Arbitration and Conciliation Act is not applicable to divest the jurisdiction to arbitral tribunal which has no jurisdiction to decide that issue. So under such circumstances the order passed by the court 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 8 ## _**O.P.(C) Nos.3051 of 2016**_ 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** _//True Copy//_ _P.A. to Judge_ ss