Maninder Kalra v. Alka Singh

1. This application has been filed on behalf of the defendant invoking Section 8 of the Arbitration and Conciliation Act, 1996.

2. Notice in the application was issued and accepted by the counsel appearing on behalf of the plaintiff on 4th February, 2022. Reply to the application has also been filed on behalf of the plaintiff.

3. The present suit has been filed on behalf of the plaintiff seeking recovery of possession of the immovable property, being W-5 C/6, W-5C Lane, Khasra No. 8/21, Sainik Farm, Village Devli, Tehsil Mehrauli, New Delhi-110062 (suit property) along with mesne profits for wrongful occupation of the suit property by the defendant and mandatory injunction against the defendant to clear outstanding utility bills. 2022:DHC:3613

4. Before dealing with the present application, it is deemed appropriate to give a brief résumé of facts leading to the filing of the present suit. 4.[1] Possession of the suit property was acquired by the defendant on the basis of a Leave and License Agreement dated 18th May, 2019 executed in her favour by the mother of the plaintiff, late Mrs. Bhupinder Soin, for a period of eleven months. 4.[2] Upon expiry of the aforesaid License Agreement, a subsequent Leave and License Agreement dated 10th July, 2020 was entered into between the mother of the plaintiff and the defendant for an additional period of eleven months. The said Leave and License Agreement expired by the efflux of time on 9th June, 2021. Thereafter, the defendant continued to be in occupation of the suit property as a permissive user. 4.[3] The mother of the plaintiff expired on 6th May, 2021, who, by virtue of the registered Will dated 4th December, 2007, bequeathed the suit property in favour of the father of the plaintiff, Maj. Gen. Jagdarshan Singh Soin (Retd.). 4.[4] Subsequently, the father of the plaintiff expired on 26th August, 2021 and the plaintiff succeeded as owner of the suit property by virtue of the addendum dated 9th March, 2019 to the registered Will dated 21st September, 2006 of her father. 4.[5] Notice dated 20th November, 2021 was sent by the plaintiff to the defendant seeking possession of the suit property in view of the fact that the term of the license had expired. However, the defendant failed to deliver possession and therefore, the plaintiff was constrained to file the present suit.

5. Upon receipt of summons, the defendant has filed the present application under Section 8 of the Arbitration and Conciliation Act, 1996.

6. Counsel for the defendant has placed reliance on the arbitration clauses in both the aforesaid License Agreements to contend that the same are very wide in scope and therefore, the dispute forming subject matter of the present suit would be covered under the said clauses. It is further contended that the aforesaid arbitration clauses do not perish with the main agreements and are agreements independent of the underlying License Agreements.

7. Reliance is also placed on the judgment of this Court in Anjuman Taraqqi Urdu (Hind) v. Vardhman Yarns & Threads Ltd., 2012 SCC OnLine Del 655: ILR (2012) 2 Del 770 and the judgment of Punjab and Haryana Court in M/s. Lovely Obsessions Pvt. Ltd., Gurgaon v. M/s. Sahara India Commercial Corporation Ltd., Gurgaon, 2013 Suppl (2) Arb LR 418.

8. Per contra, the counsel for the plaintiff submits that as none of the reliefs claimed in the suit relate to the Leave and License Agreements, the present application is not maintainable.

9. I have heard the counsels for the parties.

10. At the outset, it may be pertinent to refer to the identical dispute resolution clauses of the Leave and License Agreements: “8. Both the LICENSOR and the LICENSEE agree that any dispute in respect of this LICENSE AGREEMENT shall be submitted to Arbitration in accordance with the Arbitration and Conciliation Act 1996 by a single Arbitrator who shall be Mr. Praveen Nagar LL.M., University of Manchester Managing Partner - PS Legal or in case of his unavailability V. Hari Pillai Advocate Sr. Partner, PDS & Partners or in case of his unavailability any other advocate from V. Hari Pillai’s office.”

11. Reference may also be made to the prayers made in the plaint, which are as under: “a. Pass a decree in favour of the Plaintiff and against the Defendant to hand over peaceful, vacant and physical possession of the Suit Property W-5 C/6, W-5C Lane, Khasra No. 8/21, Sainik Farm, Village Devli, Tehsil Mehrauli, New Delhi-110062 as described in the Plan annexed hereto and marked as Schedule “A” to the Plaint. b. Pass a decree in favour of the Plaintiff and against the Defendant for mesne profit at the rate of Rs.10,000/- per day for the wrongful and unauthorized occupation of the Suit Property from the date of institution of the Suit till the peaceful, vacant and physical possession of the Suit Property is delivered to the Plaintiff. c. Pass a decree of mandatory injunction against the Defendant directing the defendant to clear the outstanding bills of BSES Rajdhani Power Ltd., W-5 Residents Welfare Association (for Water) and Indraprastha Gas Limited (IGL) amounting to Rs.64,200/-, Rs. 4,500/- and Rs. 8,405.24- respectively; d. Grant cost of the Suit to the Plaintiff; e. Pass such further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

12. It is an admitted position that the period of the Leave and License Agreement expired on 9th June, 2021. Thereafter, the defendant continued to be in permissive possession of the suit property. Vide notice dated 20th November, 2021 the plaintiff called upon the defendant to handover physical, vacant and peaceful possession of the suit property on or before 30th November, 2021.

13. From the prayers set out above, it is clear that the plaintiff has sought possession of the suit property as well as recovery of mesne profits from the date of institution of the suit till the physical possession of the suit property is delivered to the plaintiff.

14. In my considered view, none of the aforesaid reliefs claimed in the suit are relatable to the Leave and License Agreements. Since the defendant continued to be in occupation of the suit property even after the term of the license had expired, the plaintiff has sought possession of the suit property. So, the continued occupation of the suit property by the defendant without payment of any rent/license fee even after the period of permissive user was over, has nothing to do with the Leave and License Agreement. Further, no arrears of rent/license fee/occupation charges are being sought for the period covered under the Leave and License Agreement or the period thereafter, till the filing of the present suit. Only mesne profits are sought to be recovered from the date of filing of the suit.

15. In Anjuman Taraqqi (supra), even after expiry of the lease by the efflux of time, the tenant continued to pay rent to the landlord and it was only thereafter that the plaintiff issued a notice for termination of tenancy under Section 106 of the Transfer of Property Act. Further, in the said case, the plaintiff had sought mesne profits for the period before institution of the suit as well, which is not the case in the present suit. Therefore, the aforesaid judgment would not be of any assistance to the defendant.