IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT M/s. Big Shoppers Supermarket Pvt. Ltd. Vs. M/s.K.M. Trading and Agencies Pvt.Ltd. (S.B. Arbitration Application No.49/2007) S. B. Arbitration Application under Section 11 of the Arbitration and Conciliation Act,1996. Date of Judgment: August 29, 2008. PRESENT HON'BLE MR. SHIV KUMAR SHARMA, J. Mr. Mahendra Singh, for the applicant. Mr. A.K.Bhandari, Sr. Advocate] for respondent. Mr. Anant Bhandari ] BY THE COURT: In this application under section 11 of Arbitration and Conciliation Act,1996 (for short ` 1996 Act') the applicant seeks to appoint sole arbitrator. 2. The applicant, a registered company, engaged in business of operating Departmental/ Supermarket stores. The respondent company owned a complex in the name of Central Point having basement, ground floor and four floors thereon at Plot No.A-34, Prabhu Marg, Tilak Nagar Jaipur. A lease deed was executed between applicant and respondent company on November 3, 2001 regarding built up area 9565.61 sq.ft. in ground floor along with 10 Air conditioned units and one DG set installed in the said premises. Due to business exigencies the applicant expressed its desire to surrender lease in respect of premises situated at first floor and to retain lease of premises at Ground floor and to revise lease rent w.e.f. October 1, 2002, the respondent lessor agreed and executed fresh lease deed on October 1, 2002. Big Shoppers Pvt.Ltd. Vide agreement dated July 5, 2005 transferred to Big Shoppers supermarket Pvt.Ltd. as growing concern all its business along with all rights available to it. Thus Big Shoppers Supermarket Pvt.Ltd. stepped in the shoes of Lessee. On account surrendering lease in respect of premises of first floor, the rent was revised w.e.f. October 1, 2002. The applicant lessee agreed to pay rent @ Rs.80,000/- per month. The lease was for a period of 18 years w.e.f. October 1, 2002. It was unregistered lease. On March 1, 2006 fresh lease deed was executed, according to which the lease was for a further period of 18 years w.e.f. March 1, 2006. After surrendering some portion, the area of demised premises will be 2650 sq.ft. only instead of 4180.55 sq.ft. and the rent will be Rs.40,000/- per month. The applicant continuously insisting for getting the deed registered, but the respondent did not pay any heed, however the applicant is ready and willing to perform his duty. The applicant received a notice dated June 19, 2007 from respondent for terminating the tenancy and to hand over the possession. The applicant sent reply to the notice on June 26, 2007, the receipt of which stands acknowledged in rejoinder dated July 3, 2007. Through reply the applicant asked the respondent to get resolve the disputes. The parties have also chosen the forum of arbitration according to clause 24 of the lease deed. Accordingly the applicant suggested names of four retired Judges for appointment as Sole Arbitrator. Following disputes are required to be referred to Sole Arbitrator:- a) Whether the applicant is entitled to the specific performance of the contract viz.for asking the respondent to submit the lease ded for registration and get it registered? b) In case decree for specific performance is granted, what is the effect of the decree for specific performance on the notice dated June 19, 2007 served by the lesser upon the Lessee? c) Whether notice of terminating tenancy is valid? d) Whether the lessor is entitled to a decree for eviction as per the provisions of the Rajasthan Rent control Act,2001? Therefore the applicant company preferred the instant application for appointment of Sole Arbitrator. 3. The respondent company filed reply to the application raising preleminary objection thus:- (i) The applicant has not filed original arbitration agreement along with the application, therefore, in view of section 8 of 1996 Act the application is not maintainable. (ii) The dispute between the parties is regarding termination of tenancy and eviction of tenant applicant. The dispute can only be decided by Rent Tribunal under the provisions of Rajasthan Rent Control Act,2001 (for short `Rent Act') and such matter cannot be rendered for arbitration. As per Section 18 of Rent Act no Civil Court has jurisdiction to decide the matter between landlord and tenant. As per Section 9 of Rent Act for the eviction of tenant the satisfaction of Rent Tribunal is necessary and it does not require satisfaction of any other court or of an arbitrator. Section 9 further provides that it will have overriding effect over all other laws and contracts including arbitration agreement. Section 29 of Rent Act has overriding effect over other laws. Section 2(3) of 1996 Act provides that provisions of 1996 Act cannot effect any other law for the time being in force by virtues of which certain disputes cannot be submitted for arbitration. (iii) The respondent landlord has already filed a suit for eviction bearing case No.365/2008 against the applicant tenant before the Rent Tribunal Jaipur. Notice has also been issued to tenant by the Rent Tribunal, which is appropriate forum. In parawise reply to the application the respondent contended that no resolution has been filed along with the application to prove authority of Mr.Rajendra Bardia to file present application. Execution of lease deed on March 1, 2006 was admitted, but since the lease deed is unregistered the same is not admissible in evidence, and therefore the provisions of lease deed cannot be read. The respondent sent the notice on June 19, 2007, thereby terminated the tenancy from November 31, 2007. After receipt of the notice, the applicant asked for registration of lease deed, vide reply to notice dated June 26, 2007. Since the lease deed already stood terminated there was no question of getting the lease deed registered. According to Section 23 of Registration Act,1908 no document can be accepted for registration unless presented within four months from the date of its execution. The limitation of registration of lease deed has already expired. 4. I have given my thoughtful consideration to the rival submissions. 5. Admittedly the applicant is tenant and the respondent is the landlord and the dispute between the parties relates to termination of tenancy and eviction of the tenant. As per section 18 of the Rent Act, only the Rent Tribunal has the jurisdiction to resolve the disputes between land lord and tenant. Section 18(1) reads as follows:- "18.(1) Jurisdiction of Rent Tribunal. Notwithstanding anything contained in any other law for thetime being inforce, in the areas to which this Act extends, only the Rent Tribunal and no Civil Court shall have jurisdiction to hear and decide the petitions relting to disputes between land lord and tenant and matters connected therewith and anciliary thereto, filed under the provisions of this Act. Provided that Rent Tribunal shall, in deciding such petitions to which provisions contained in Chapter II and III of this Act do not apply have due regard to the provisions of Transfer of Properties Act, 1882 (Act No.4 of 1882), the Indian Contract Act, 1872 (Act No. 9 of 1872), or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a Civil Court by way of suit; Provided further that nothing contained in this Act shall be deemed to empower the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No.2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply. " 6. A further look at the scheme of Rent Act demonstrates that as per Section 9 the satisfaction of Rent Tribunal is necessary before ordering eviction of the tenant. The satisfction of Rent Tribunal can not be substantiated with that of the satisfaction of Arbitrator. According to section 29 the provisions of Rent Act have overriding effect over other laws. Section 29 reads thus:- "29. Act to have overriding effect.- The provisionsof this Act shall have effect notwithstanding anything inconsistent in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 7. Even as per section 2(3) of 1996 Act, the said Act shall not effect any other law for the time being in force. Section 2(3) reads as follows:- “(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration." 8. Indisputably the respondent land lord has already filed a suit for eviction bearing No.365/2008 against the tenant applicant in the Rent Tribunal Jaipur which is pending for adjudication. Now after noticing that the suit for eviction is pending against him, the tenant has filed instant application. According to the tenant the dispute has arisen in relation to or connected with the lease deed or concerning the lease and the following disputes are required to be referred to the Sole Arbitrator for adjudication:- a) Whether the applicant is entitled to the specific performance of the contract viz.for asking the respondent to submit the lease ded for registration and get it registered? b) In case decree for specific performance is granted, what is the effect of the decree for specific performance on the notice dated June 19, 2007 served by the lesser upon the Lessee? c) Whether notice of terminating tenancy is valid? d) Whether the lessor is entitled to a decree for eviction as per the provisions of the Rajasthan Rent control Act,2001? 9. I am afraid, the Arbitrator cannot resolve as to whether the respondent landlord is entitled to a decree for eviction or not under Rent Act. It is only the Rent Tribunal, which has jurisdiction to pass the decree for eviction. 10. Ratio indicated in Harinagar Sugar Mills Ltd. Vs. Shyam Sunder Jhunjhunwala (AIR 1961 SC 1669), Sudhir Kumar Saha Vs. JN Chemicals (AIR 1985 Calcutta 454) and Galib Bin Awaz Vs. Mohd.Abdul Khader (1987)3 SCC 527 on which reliance is placed by the learned counsel for the applicant, is not applicable to the instant case. 11. As a result of the above discussion, I find no merit in the instant application and the same accordingly stands dismissed without any order as to costs. (Shiv Kumar Sharma)J. arn/