Shri Sanjay Saxena Vs Sh. K. Sudershan Reddy and Others

Valmiki J Mehta, J.@mdashThis appeal was argued by one Mr. N.N. Anand, Advocate when the same came up for admission on 23.3.2012. After arguments, the said counsel took an adjournment to find out from the appellant whether the appellant is interested in seeking time to vacate the suit premises. Today, a new counsel appears. The new counsel for the appellant states that the appellant wants three years time to vacate the suit premises. I do not think that interest of justice requires grant of such a long period. I put it to the counsel for the appellant as to whether the appellant is interested in taking six months time to vacate the suit premises but the counsel for the appellant states that the appellant is not interested in taking six months time to vacate the suit premises. Since the appeal has already been argued on 23.3.2012, I am proceeding to pass judgment. The challenge by means of this Regular First Appeal (RFA) filed u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 25.2.2012 decreeing the suit of the respondents/plaintiffs/landlords qua the relief of possession on an application under Order 12 Rule 6 CPC.

2. In the city of Delhi, tenanted premises whose rent exceeds ` 3,500/- per month, and there is no registered lease deed for a fixed period, then such monthly tenancy can be terminated by means of serving a legal notice u/s 106 of the Transfer of Property Act, 1882 and whereafter the tenant has no legal right to stay in possession of the suit premises.

3. In the present case, the relationship of landlord and tenant is admitted. Rent of the suit premises is more than ` 3,500/- per month and is ` 40,000/- per month. The lease deed being an unregistered lease deed, the appellant was a monthly tenant whose tenancy was terminated by means of a legal notice dated 22.2.2011 and which is not disputed. I have also in the recent judgment reported as Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) and Another, held that even if it is not proved that a legal notice was served prior to filing of the suit, service of summons of the suit can be taken as a notice u/s 106 of the Act. I have also held in the judgment of M/s. Jeevan Diesels (Supra) that if along with the plaint, copy of the notice is served on the tenant and once again, this can be taken as service of notice. The aforesaid aspects can be taken note of under Order 7 Rule 7 CPC. I have held that Court should take a pragmatic view in view of the legislative intendment as demonstrated by Act 3 of 2003, amending Section 106 of the Act. An SLP against the said judgment being SLP No. 15740/2011 has been dismissed by the Supreme Court on 7.7.2011.

4. Therefore, there were no disputed questions of fact requiring trial and the suit so far as the relief of possession is concerned, was rightly decreed.

5. The only dispute raised before the trial Court was that that the unregistered lease deed between the parties contains an arbitration clause and therefore the disputes had to be referred to arbitration. I may note that the disputes are referred to arbitration, provided there exists a dispute in the first place. If there are no disputes or no live disputes there does not arise any issue of referring the matter to the arbitration. The Supreme Court in the judgments reported as Ramesh Kumar and Another Vs. Furu Ram and Another etc., , Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, , Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd., and Union of India and ors. Vs. Talson Builders (2008) 14 SCC 502 has held that existence of a dispute is a sine qua non to refer the matter for arbitration and also the disputes must be live disputes requiring adjudication. Applying the ratio of the aforesaid cases, since in the present case there is no disputed question of fact requiring trial, there is no dispute which requires to be referred to arbitration.

6. I may also note that the Supreme Court in the judgment of Panchu Gopal Bose Vs. Board of Trustees for Port of Calcutta, dismissed the petition for reference of the disputes to arbitration when the disputes were ex facie barred by time. In fact, the Supreme Court in this judgment superseded the arbitration agreement even before reference of the disputes to the arbitration because reference would have been futile. No doubt, the said judgment was under the Arbitration Act, 1940, however, even under the Arbitration & Conciliation Act, 1996 Courts would have powers in appropriate cases to supersede the arbitration agreement when reference to arbitration would be a futility. As per Section 14 of the Arbitration & Conciliation Act, 1996, the mandate of the Arbitrator shall terminate when the Arbitrator becomes de jure or de facto unable to perform his functions. In the present case, the Arbitrator would de facto be unable to perform his functions as there are no disputes which require adjudication. Accordingly, I hold that the arbitration agreement would stand superseded so far as the dispute of possession is concerned. With the aforesaid observations, the appeal being without merit, is dismissed, leaving the parties to bear their own costs.