IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 648 of 2009 Date of Decision : June 25, 2010 Branch Manager, H.P. State Cooperative Bank Ltd. & anr. Petitioners Versus Balwant singh and another Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioners : Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate, for the petitioners. For the respondents : Mr. Deepak Bhasin, Advocate, for respondent No. 1. Mr. Ram Murti Bisht, Deputy Advocate General for respondent No. 2. Sanjay Karol, J. (Oral) In this petition filed under Article 227 of the Constitution of India, the original defendants No. 1 and 2 have assailed the orders dated 9.10.2009 passed by the learned Civil Judge (Senior Division) Court No. (I), Rohru, District Shimla, H.P. in C.M.A. No. 173/6 of 2009. In terms of the impugned order their application filed under Section 8(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) stands dismissed. Whether reports of Local Papers may be allowed to see the judgment? 2 2. Respondent No. 1 herein is the plaintiff and respondent No. 2 is the proforma defendant No. 3. 3. Before the learned Civil Judge, Rohru the plaintiff filed a suit for permanent prohibitory injunction praying for the following relief:- “It is therefore most humbly prayed that the suit of the plaintiff may kindly be decreed with costs against the defendants and defendants No. 1 and 2 be restrained from shifting the cooperative Bank Branch Jangla from the premises of plaintiff situated in Khasra no. 203 in Chak Thali Jangla at Jangla, Tehsil Chirgaon, Distt. Shimla, H.P. in any manner whatsoever, contrary to the promise made and without obtaining necessary permission from the Reserve Bank of India in the interest of justice.” 4. It is the plaintiff’s case that the contesting defendants had taken the demised premises belonging to him on rent. They are now intending to shift the branch of the Bank from the demised premises and vacate the same. Hence they be restrained from doing so. 5. Notice in the suit was issued and the defendants were duly served. 6. Upon receipt of the notice, the contesting defendants immediately filed an application under Section 8(1) of the Act pleading that in terms of Clause 12 of the lease deed entered into between the plaintiff and the contesting defendants the disputes were required to be referred to the Registrar, Co-operative Societies, 3 Himachal Pradesh, Shimla for arbitration. Accordingly a prayer was made to refer the dispute for arbitration. 7. The application was contested by the plaintiff on the ground that no lease deed dated 4.12.2008 was ever executed between the parties. The Bank has committed a fraud and obtained signatures on blank papers which apparently have been used to prepare the lease deed. 8. The Court below dismissed the application by assigning the following reasons:- “At the very outset perusal of Section 8 of Arbitration and Conciliation Act, 1996, Sub Clause (2), it says that the application referred to in sub section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or the duly certified copy thereof. On scrutiny of the lease deed enclosed by the applicants/defendants with this application neither the same is original nor it is a certified copy, but it is only attested from true copy which violates the aforesaid provision of Section. Secondly, the lease deed as alleged by the applicants/defendants executed in between them and the plaintiff/non-applicant on 4.12.2008 i.e. for three years it will also remain in force up till 4.12.2011, therefore, the applicants/defendants can also not vacate the premises in dispute before 4.12.2011. Apart from the above facts on going through the plaint of the suit, the plaintiff/non- applicant has filed the same suit for permanent prohibitory injunction restraining the defendants No. 1 and 2 from shifting the Cooperative Bank Brach Jangla from the premises in dispute situated on the 4 Khasra No. 203 in the Revenue Chak Thali Jangla, Tehsil Chirgaon, Distt. Shimla, H.P. in the premises of third person and it will cause substantial loss and damage to him as well as to general public also, which clearly shows that the arbitrator cannot grant such relief to the plaintiff/non- applicant, the such type of relief can be only granted by the civil court on him. On careful scrutiny of the entire record as well as facts, circumstances of the matter I am also agreed with the submissions put forth by Ld. Counsel for plaintiff/non-applicant that the present application is neither maintainable nor sustainable at this stage against the suit of the plaintiff/non- applicant neither it is deserved to be referred to Arbitrator for its settlement and adjudication. So, after due consideration I hereby dismiss this application.” 9. In my considered view the Court below has seriously erred in dismissing the application. The petitioner herein is a Bank. Even as per plaintiff’s own averments made in the plaint the demised premises stood leased to the contesting defendants. The contractual relationship between the parties continued for over a period of one year and the defendants were claiming the same till the year 2011. This matches the terms of the lease deed. Attested copy of the lease deed duly executed by the parties was placed on record by the Bank. In this background it is difficult to believe that no lease deed was ever executed between the parties. 10. Clause 12 of the lease deed reads as under:- 5 “That in the event of any dispute touching this lease deed or the interpretation of any clause of the said deed the matter shall be referred to the Registrar, Co-operative Societies, Himachal Pradesh, Shimla for arbitration and his decision shall be final and binding on both parties.” 11. In terms thereof the matter needs to be referred to the arbitrator. It is not disputed that the contesting defendants had not filed their first statement on the substance of the dispute. The Bank cannot be restrained from vacating the demised premises particularly when a more suitable accommodation for setting up the branch of the Bank had been made. Larger public interest has to be kept in mind. At best plaintiff is entitled to damages for losses suffered, if any and that too in accordance with law. 12. The Court below has seriously erred in holding that substantial loss and damage would be caused to the plaintiff and general public. 13. The arbitrator, under Section 16 of the Act has power to decide on its own jurisdiction including the question of existence or validity of the arbitration agreement. The arbitrator also has the power to pass orders for taking interim measures for protection as may be considered necessary in respect of the subject matter of the dispute. 14. Where the agreement contains an arbitration clause and the parties move the Court for referring the dispute to the arbitrator, it 6 is obligatory for the Court to refer the parties to arbitration in terms of their agreement. 15. In this view of the matter the impugned order is set aside and the application filed by the contesting defendants is allowed. The dispute between the parties is referred to the arbitrator in terms of Clause 12 of the agreement dated 4.12.2008. The parties are directed to appear before the arbitrator on 2nd August, 2010. The arbitrator shall thereafter commence the proceedings in accordance with law. Petition stands disposed of. Records be sent back immediately. (Sanjay Karol), Judge. June 25, 2010 (PK)