HIMANGNI ENTERPRISESversusKAMALJEET SINGH AHLUWALIA

                       [2017] 10 S.C.R. 139



                   HIMANGNI ENTERPRISES                                A
                                 v.
               KAMALJEET SINGH AHLUWALIA
                 (Civi!Appea!No.16850of2017)
                       OCTOBER 12, 2017                                B
  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.J
      Arbitration and Conciliation Act, 1996:
       s.8 - Application under - Jn a pending suit for eviction of
premises in question leased out to the defendant - Defendant's C
application u/s. 8 rejected by courts below - On appeal, held: The
issue i.e. eviction and tenancy since governed by special statute, is
not arbitrable - Therefore, application u/s. 8 was rightly rejected
and suit filed by the landlord was nwintainable - Even to the premises.
to which the Rent Act is not applicable, Arbitration Act is not . D
applicable - Delhi Rent Act, I 955 - s.3.
      Dismissing the appeal, the Court
      HELD: 1.1 The relationship between the parties being
that of licensor-landlord and licensee-tenant and the dispute
between them relating to the possession of the licensed demised        E
premises, there is no help from the conclusion that the Court of
Small Causes alone has the jurisdiction and the arbitrator has
none to adjudicate upon the dispute between the parties. [Para
22] [145-C]
      1.2 Eviction or tenancy matters governed by special statutes     F
where the tenant enjoys statutory protection a'gainst eviction and
only the specified courts are· conferred jurisdiction to grant
eviction -or decide the disputes, are non-arbitrable disputes. [Para
23] [145-F-G]
      1.3 The Courts below were right in dismissing the                G
appellant's application filed under Section 8 of the Arbitration
and Conciliation Act, 1996 and thereby were justified in holding
that the civil suit filed by the respondent was maintainable for
grant of reliefs claimed in the plaint despite parties agreeing to

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                                139
140            SUPREME C(\(JRT REPORTS                   [20 I7] IO S.C.R.



A     get the disputes arising therefrom to be decided by the arbitrator.
      [Para 24] [145-G-H; 146-A-B]
            Natraj Studios ( P) Ltd. v. Navrang Studios & Another,
            1981(1) SCC 523 : [1981] 2 SCR 466; Booz Allen &
            Hamilton Inc. v. SB! Home Finance Ltd. & Ors. (2011)
B           5 SCC 532 : [2011] 7 SCR 310 - relied on.
            Reva Electric Car Company Pvt. Ltd. v. Green Mobil
            (2012) 2 SCC 93 : [2011] 13 SCR 359; Harishchandra
            Hegde v. State of Karnataka & Ors. (2004) 9 SCC
            780 : [2003] 6 Suppl. SCR 1111 - distinguished.
c           Anjuman Taraqqi Urdu (Hind) 11. Vardhaman Yarns &
            Threads Ltd. ILR (2012) II Delhi 770; Mis Lovely
            Obsessions Pvt. Ltd., Gurgaon v. Mis Sahara India
            Commercial Corp. Ltd. Gurgaon (2012) SCC Online
            P&H 11449; Khadi & Village Industries Commission v.
D           Saraswati Ramkrishna Dalmia & Ors. (2013) 3 Mh.L..J.
            250 - not approved.
            2. The Delhi Rent Act, 1955 which deals tvith the cases
      relating to rent and eviction of the premises, is a special Act.
      Though it contains a provision (Section 3) hy virtue of it, the
E     provisions of the Rent Act do not apply to certain premises but
      that docs not mean that the Arbitration Act, ipso facto, would be
      applicable to such premises conferring jurisdiction on the
      arbitrator to decide the cvidion/rcnt disputes. Jn such a situation,
      the rights of the parties and the demised premises would be
      governed by the Transfer of Property Act and the civil suit would ·
F     be triable by the Civil Court and nut by the arbitrator. In other
      words, though b) virtue of Section 3·or the Rent Act, the provisions
      of the Rent Act arc not applicable to certain premises but no
      sooner the exemption is withdrawn or ceased to have its
      application to a particular premises, the Act becomes applicable
G     tu such premises. In this view of the matter, it cannot be
      contended that the provisions of the Arbitration Act would,
      therefore, apply to such premises. [Para 26] [146-C-E]
                            Case Law Reference
      ILR (2012) II Delhi 770             not approved       Para 15
H (2012) SCC Online P&H 11449             not approved       I'ara 15
       HIMANGNI ENTERPRISES v. KAMALJEET SINGH                               141
                    AHLUWALIA

(2013) 3 Mh.L.J. 250                    not approved        Para 15          A
[2011] 13 SCR 359                       distinguished       Para 15
[2003] 6 Suppl. SCR 1111                distinguished       Para 15
[1981] 2 SCR 466                        relied on           Para 18
[2011] 7 SCR 310                        relied on           Para 18
                                                                             B
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.16850
of2017.
      From the fina!Judgment and Order dated 27.07.2016 passed by
the High Court of Delhi at New Delhi in FAO No.344 of 2016.
     Geeta Luthra, Sr. Adv., Ms.Supriya Juneja, Ms.Shivani Lohia,            C
Altamish, Bharat Monga, Ad vs. for the Appellant.
       Dhruv Mehta, Sr. Adv., Pret;t Pal Singh, Palash Agarwal, Advs.
for the Respondent.
      The Judgment of the Court was delivered by
                                                                             D
      ABHAY MANOHAR SAPRE, J. I. Delay condoned. Leave
granted.
       2. This appeal is filed by the defendant against the final judgment
and order dated 27.07.2016 passed by the High Court of Delhi at New
Delhi in F.A.O. No.344 of2016 whereby the High Court dismissed the           E
appeal filed by the appellant herein and upheld the order dated 11.04.2016
of the Additional District Judge-05, South East Dist., Saket Courts, New
Delhi in C.S~ No. 132 of2016.
       3. The question involved in the appeal is short. It arises on the
facts, which lie in a narrow compass.                                        F
       4. The question, which arises for consideration in this appeal, is
whether the two Courts below were justified in rejecting the application
filed by the appellant herein under Section 8 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as "the Act") in a pending
civil suit filed by the respondent seeking appellant's eviction from the     G
premises in question and for claiming some ancillary reliefs therein.
       5. The appellant is the defendant whereas the respondent is the
plaintiff in a civil suit out of which this appeal arises.
      6. The respondent has filed a suit being C.S. No. 132/2016 against
the appellant on 17.08.2015 in the Court of ADJ-05, South East Dist.,        H
142             SUPREME COURT REPORTS                          [2017] 10 S.C.R.


A Saket Courts, New Delhi.
             7. The suit is filed essentially to seek appellant's eviction from
      Shop No. SF-2 measuring around 317.29 Sq. ft. situated at 2"d floor in a
      Commercial Complex known as "Omaxe Square" in Block No.14, Non-
      Hierarch y Commercial Center, District Center Jasola, New Delhi
B     (hereinafter referred to as "the suit premises") and for recovery of unpaid
      arrears of rent and grant of permanent injunction.
             8. According to the respondent, the suit premises was leased out
      to the appellant vide lease deed dated 31.08.2010 executed between the
      appellant and the respondem's predecessor-in-title for a period of three
c     years from 07.10.2010. The lease period stipulated in the lease deed,
      however, expired by efflux of time and no fresh lease deed was executed
      thereafter between the parties for extension of the time period. The
      appellant's tenancy was monthly and started from 1" of every month
      and ended on the last day of each morith.

D             9. The appellant, on being served with the notice of the civil suit,
      filed an application under Section 8 of the Act. According to the appellant,
      since the suit was founded on the lease deed dated 31.08.2010, which
      contained an arbitration clause (9 .8) for resolving the dispute arising out
      of the lease deed between the parties, and when admittedly the disputes
      had arisen in relation to the suit premises, the same were governed by
E     the terms of the lease deed. It was contended that the civil suit to claim
      the reliefs in relation to the suit premises was, therefore, not maintainable
      ancl. in fact, barred and the remedy of the respondent to get such disputes
      resolved is to submit themselves to the jurisdiction of the arbitrator by
      taking recourse to the procedure prescribed in clause 9.8 of the lease
F     deed.
         10. In other words, the contention of the appellant, in support of
  their application, was that since the disputes for which the civil suit is
  filed arise out of the lease deed dated.31.08.2010 which contained an
  arbitration clause (9.8) for their adjudication through the arbitrator, the
G civil suit to get such disputes decided by the Civil Court was barred.
            11. The respondent opposed the application essentially on two
      grounds. First, the lease period initially fixed in the lease deed having
      come to an end by efflux of time, such lease deed was no longer
      enforceable by the appellant and second, the disputes, which are subject
H
       HIMANGNI ENTERPRISES v. KAMALJEET SINGH                                 143
        AHLUWALIA [ABHAY MANOHAR SAPRE, J.]

matter of the civil suit, <ire incapable of being referred to an arbitrator.   A
It was contended that the respondent has, therefore, rightly filed the civil
suit in Civil Court seeking appellant's eviction from the suit premises and
other ancillary reliefs arising therefrom and the same has to be tried by
the Civil Court.
       12. The Trial Court, vide order dated 11.04.2016, upheld the            B
objections of the respondent and dismissed the appellant's application.
The defendant, felt aggrieved, filed appeal before the High Court.
       13. By impugned judgment, the High Court dismissed the appeal
and upheld the order of the Trial Court giving rise to filing of the special
leave to appeal by the defendant (appellant herein) before this Court.         c
       14. Heard Ms. Geeta Luthra, learned senior counsel for the
appellant and Mr. Dhruv Mehta, learned senior counsel for the respondent. .·
       15. Though learned senior counsel for the appellant (defendant)
argued the point involved in the appeal at great length an'd also cited
several decisions such as, Anjuman Taraqqi Urdu (Hind) vs. D
Vardhaman Yarns & Threads Ltd., ILR(2012) II Delhi 770, Mis
Lovely Obsessions Pvt. Ltd., Gurgaon vs. Mis Sahara India
Commercial Corp. Ltd. Gurgaon, (2012) SCC Online P&H 11449,
Reva Electric Car Company Pvt. Ltd. vs. Green Mobil, (2012) 2
SCC 93, Harishchandra Hegde vs. State of Karnataka & Ors., E
(2004) 9 SCC 780 and Khadi & Village Industries Commission vs.
Saraswati Ramkrishna Dalmia & Ors., (2013) 3 Mh.L.J. 250
contending that the application filed by the appellan_t under Section 8 of ,
the Act should have been allowed by the Courts below and the respondent
should have been relegated to submit themselves to the jurisdiction of an
arbitrator in terrris of clause 9.8 of the lease deed for determination of F
the disputes by the arbitrator instead of filing the civil suit for their
determination by the Civil Court.
      16. In reply, learned senior counsel for the respondent(plaintift)
supported the impugned judgment and contended that it does not call for
any interference and hence the appeal deserves dismissal.                      G
      17. Having heard learned senior counsel for the parties at length
and on perusal of the record of the case, we find no merit in the appeal.


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144             SUPREME COURT REPORTS                          [2017] 10 S.C.R.


A         18. In our considered opinion, the question involved in the appeal
  remains no longer res integra and stands answered by two decisions of
  this Court in Natraj Studios (P) Ltd. vs. Navrang Studios & Another,
  1981 ( 1) SCC 523 and Booz Allen & Hamilton Inc. vs. SBI Home
  Finance Ltd. & Ors., (2011) 5 SCC 532 against the appellant and in
B favour of the respondent.
              19. So far as Natraj Studio's case (supra) is concerned there
      also, the landlord had filed a civil suit against the tenant in the Small
      Causes Court, Bombay claiming therein the tenant's eviction from the
      leased premises. There also, the tenant was inducted pursuant to "leave
      and license" agreement executed between the landlord and the tenant.
c
          20. The tenant filed an application under Section 8 of the Arbitration
  Act, 1940 contending therein that since the "leave and license" agreement
  contained an arbitration clause for resolving ~!1 kinds of disputes arising
  between the parties in relation to the "leave and license" agreement and
  the disputes had arisen between the parties in relation to the "leave and
D license" agreement, such disputes could only be resolved by the arbitrator
  as agreed by the parties in the agreement. It was contended that the
  civil suit was, therefore, not maintainable and the disputes for which the
  suit has been filed be referred to the arbitrator for their adjudication.
             21. This Court (Three Judge Bench) speaking through Justice 0.
E     Chinnappa Reddy rejected the application filed by the tenant under Section
      8 of the Act and held, inter alia, that the civil suit filed by the landlord
      was maintainable. It was held that the disputes of such nature cannot be
      referred to the arbitrator.
            22. This is what Their Lordships held as under:
F
              "24. In the light of the foregoing discussion and the
              authority of the precedents, we hold that both by reason
              of Section 28 of the Bomuay Rents, Hotel and Lodging
              House Rates Control Act, 1947 and by reason of the
              broader considerations of public policy mentioned by us
G             earlier and also in Deccan Merchants Cooperative Bank
              Ltd. v. Dalichand Jugraj Jain, the Court of Small Causes
              has and the arbitrator has not the jurisdiction to decide
              the question whether the respondent-licensor landlord is
              entitled to seek possession of the two Studios and other
H
      HIMANGNI ENTERPRISES v. KAMALJEET SINGH                             145
       AHLUWALIA [ABHAY MANOHAR SAPRE, J.]

       premises together with machinery and equipment from the            A
       appellant-licensee tenant. That this is the real dispute
       between the parties is abundantly clear from the petition
       filed by the respondents in the High Court of Bombay,
       under Section 8 of the Arbitration Act seeking a reference
       to Arbitration. The petition refers to the notices exchanged       B
       by the parties, the respondent calling upon the appellant
       to hand over possession of the Studios to him and the
       appellant claiming to be a tenant or protected licensee in
       respect of the Studios. The relationship between the
       parties being that of licensor-landlord and licensee tenant
       and the dispute between them relating to the possession            C
       of the licensed demised premises, there is no help from
       the conclusion that the Court of Small Causes alone has
       the jurisdiction and the arbitrator has none to adjudicate
       upon the dispute between the parties."
      23. Yet in another case of Booz Allen & Hamilton Inc. (supra),      D
this Court (two Judge Bench) speaking through R.V.Raveendran J. laid
down the following proposition oflaw after examining the question as to
which cases are arbitrable and which are non-arbitrable:
       "36. The well-recognised examples of non-arbitrable
       disputes are: (i) disputes relating to rights and liabilities      E
       which give 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)            F
       eviction or tenancy matters i:overned by special statutes
       where the tenant enjoys statutory protection a1,tainst
       eviction and only the specified courts are conferred
       jurisdiction to 1,trant eviction or decide the disputes."
                                                (emphasis supplied)       G
      24. Keeping in view the law laid down by this Court in
aforementioned two decisions and applying the same to the facts of this
case, we have no hesitation to hold that both the Courts below were

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146             SUPREME COURT REPORTS                         [2017] IO S.C.R.


A     right in dismissing the appellant's application filed under Section 8 of the
      Act and thereby were justified in holding that the civil suit filed by the
      respondent was maintainable for grant of reliefs claimed in the plaint
      despite parties agreeing to get the disputes arising therefrom to be decided
      by the arbitrator.
B            25. Learned counsel for the appellant, however, argued that the
      provisions of the Delhi Rent Act, 1955 are not applicable to the premises
      by virtue of Section 3(c) of the Act and hence the law laid down in the
      aforementioned two cases would not apply. We do not agree.
         26. The Delhi Rent Act, which deals with the cases relating to
c rent and eviction of the premises, is a special Act. Though it contains a
  provision (Section 3) by virtue of it, the provisions of the Act do not
  apply to certain premises but that does not mean that the Arbitration
  Act, ipso facto, would be applicable to such premises conferring
  jurisdiction on the arbitrator to decide the eviction/rent disputes. In such
  a situation, the rights of the parties and the demised premises would be
D governed by the Transfer of Property Act and the civil suit would be
  triable by the Civil Court and not by the arbitrator. In other words,
  though by virtue of Section 3 of the Act, the provisions of the Act are not
  applicable to certain premises but no sooner the exemption is withdrawn
  or ceased to have its application to a particular premises, the Act becomes
E applicable to such premises. In this View of the matter, it cannot be
  contended that the provisions of the Arbitration Act would, therefore,
  apply to such premises.
         27. We have gone through the decisions cited by the learned
  counsel for the appellant in support of her contention. Having gone
F through the same, we are of the considered opinion that firstly, some
  decisions are rendered by the High Court; Secondly, remaining decisions
  are distinguishable on facts and lastly, in the light of two authoritative
  decisions of this Court, which are directly on the point and continue to
  hold the field, no reliance can be placed by the learned counsel for the
  appellant on any decision of the High Court. Indeed, any such decision
G of the High Court, which has taken view contrary to the view of this
  Court, the same stands overruled. Such is the case here.
             28. We, therefore, need not deal with any other submissions of
      learned counsel for the appellant which, in our opinion, really do not
      arise in the light of what we have held. supra.
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       HIMANGNI ENTERPRISES v. KAMALJEET SINGH                                147 ·
        AHLUWALIA [ABHAY MANOHAR SAPRE, J.]

      29. In view of foregoing discussion, we find no merit in the appeal,    A
which fails and is accordingly dismissed.
       30. We accordingly direct the concemedCivil Court which is seized
of the civil suit to proceed with the trial of the suit on the merits in
accordance with law uninfluenced by any of our observations made
herein, expeditiously.                                                        B


Kalpana K. Tripathy                                       Appeal dismissed.
                                             '   '