jpc wp9083-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9083 OF 2011 Vinay Mayashankar Pandey and others ... Petitioners Versus Mahanagar Telephone Nigam Limited ... Respondent Mr. R. D. Suryawanshi for the petitioners Ms. S. I. Shah for the respondent CORAM: R. M. SAVANT, J. DATED : 11th November, 2011 P.C. : 1. The above petition takes exception to the order dated 12th September, 2011 passed by the Joint Civil Judge, Senior Division, Kalyan by which order, the application filed by the respondent herein at Exhibit 11 in Misc. Application No.290 of 2011 for referring the parties to arbitration came to be allowed. 2. The petitioners are the original plaintiffs and the respondent herein is the original defendant in Special Civil Suit No.92 of 2011. In the said suit the relief sought against the respondent is for removal of BTS equipment which is installed on the terrace of one of the buildings jpc wp9083-11.sxw 2 originally constructed by the petitioners. The said equipment was installed pursuant to the leave and licence agreement which was entered into in this respect on 25th September, 2004 and which agreement was to be in operation for a period of 5 years. On the expiry of the period of five years, the petitioners have filed the said suit. 3. At this stage, it would be relevant to note that the said leave and licence agreement, inter alia, contains an arbitration clause being clause 13(f), which reads as follows: "It is hereby expressly agreed that if at any time there shall arise any dispute, doubt or difference or question with regard to interpretation of this Agreement or in respect of the rights, duties and liabilities of the parties hereto arising out of these present, then every dispute, doubt, difference or question shall be referred to the arbitration as per the provisions of the Arbitration and Conciliation Act, 1996 and the rules framed thereunder two arbitrators to be appointed by each of the parties and third to be appointed by the said two Arbitrators. The decision of the Arbitrators shall be final and binding to the parties to this Deed." jpc wp9083-11.sxw 3 4. In the said suit, the respondent herein i.e. Mahanagar Telephone Nigam Limited filed an application being Misc. Application No. 290 of 2011 seeking a relief that the parties be referred to arbitration in view of clause 13(f) of the said Leave and Licence Agreement. The said application was opposed by the petitioners herein on the ground that the said clause would not apply in view of the fact that the said agreement came to an end in the year 2009 itself. The trial Court, relying upon the judgment of the apex Court in DHV BV Vs. Tahal Consulting Engineering Ltd. (Israel) and another reported in AIR 2007 SC 2113 as also the judgment of this Court in the case of Parcel Carriers (India) Pvt. Ltd. Vs. Union of India and others reported in 2010 (3) Mh. L.J. 993, wherein it has been held that merely because the contract has come to an end by its termination, the arbitration clause does not get perished nor it becomes inoperative to resolve the dispute, allowed the said Misc. Application No. 290 of 2011 filed by the respondent and referred the parties to arbitration. 5. Learned counsel appearing for the petitioners would contend that the relief sought in the said suit and especially having regard to prayer clause (b) would not fall within the said arbitration clause and in any event since the said agreement has came to an end in 2009, the jpc wp9083-11.sxw 4 same has become inoperative. The learned counsel sought to rely upon the judgment of the the Apex Court in the case of Booz Allen And Hamilton Inc. Vs. SBI Home Finance Ltd. & others, reported in 2001 (5) Mh.L.J. 2011. In the said judgment, the Apex Court has laid down the tests to be followed when an application under Section 8 of the Arbitration Act is under consideration and has held that it is for the Court to decide whether the dispute is arbitrable in terms of the agreement. 6. Coming to the facts of the present case as indicated above, the main substantive relief sought is removal of the BTS equipment from the terrace of one of the buildings constructed by the petitioners. Prayer clause (b) is only seeking injunction against the respondents-defendants that they should not be permitted to install the BTS equipment by entering into the agreement with the Housing Society which has now been established in respect of the buildings in question. Having regard to the main substantive relief and taking into consideration clause 13(f) of the agreement which inter alia postulates that any dispute in respect of the rights, duties and liabilities of the parties arising out of the said agreement shall be referred to arbitration, in my view the dispute in question is arbitrable. By seeking removal of the BTS equipment, what jpc wp9083-11.sxw 5 the petitioners are, in fact, seeking is that the respondent i.e. defendant should carry out its obligation/liability under the said agreement. The said clause, as can be seen is a clause of wide amplitude and is in all encompassing clause to cover all disputes between the parties. The contention of the learned advocate of the petitioners that since the agreement has came to an end, it has become inoperative, cannot be in countenanced in the teeth of the Judgments (supra). 7. In so far as the Judgment of Booz Allen And Hamilton Inc. (supra), is concerned, the the trial Court has, in terms, recorded a finding as regards how the dispute in question is arbitrable and therefore the test as laid down in the said judgment have been satisfied. 8. In that view of the matter, no case for interdiction in the writ jurisdiction is made out. The Writ Petition is accordingly dismissed. (R. M. SAVANT, J.)