Tarun Chatterjee and Prabir Kumar Samanta, JJ. - (1.) This appeal is preferred against the judgment and/or order being Order No. 9 dated 15th September, 1999 passed by Shri S.R. Banerjee, Judge, 7th Bench, City Civil Court at Calcutta in title Suit No. 1215/99 whereby the application for temporary injunction filed by the plaintiff/ appellant was rejected and the application filed by the defendants/respondents under Order 39 Rule 4 of the Code of Civil Procedure was disposed of.
(2.) After filing an application for temporary injunction, an interim order of injunction was passed on 22nd July, 1999 restraining the defendants/respondents from proceeding with an arbitration proceeding. After appearance the defendants/respondents filed an application under Order 39 Rule 4 of the Code of Civil Procedure for vacating, varying and/or modifying the interim order of injunction passed by the Trial Court on 22nd July, 1999. A written objection to the application for injunction was also filed by them denying the allegations made in the application for injunction. In the application for injunction, the plaintiff/appellant alleged that the defendant No. 1, W.B. Electronics Industrial Development Corporation Ltd., a Government company (herein after referred as "sublessor") on 10th January, 1995, by a registered deed of lease has given 90 year's lease to the plaintiff/appellant in respect of a plot of land comprising an area of .2514 acres for setting up exclusively an Electronics Industry, solely for manufacturing purposes of electronics items. The terms and conditions set out in the registered deed of lease include the following : I. The sublessee will be required to take possession of the plot immediately after the date of execution of the lease deed. II. The lessee shall be obliged to complete the construction of the factory building at his own expenses within three years from the date of the lease agreement conforming to the Rules and Formalities of the concerned authorities and to the satisfaction of the sub- lessee. Paragraphs 4 and 6 of the lease deed provide as follows: "4. Provided always that if there be any breach of any of the terms and conditions and covenants herein on the part of the sub lessee contained the sub lessor shall call upon the sub lessee to rectify and remedy the same within three months of the date of the receipt of such notice. If the required rectifications or remedial measures are not carried out within the given period, the sub-lessor shall have the right to re-enter into possession of the demised premises or any part thereof in the name of the whole and thereupon the lease shall forthwith stand determined but not otherwise without prejudice to any right of the sub-lessor in respect of the antecedent breach." 6. It is hereby agreed by the sub-lessor and sub-lessee that the opinion of the Managing Director or his duly authorised nominee of the sub-lessor in the matter or breach of any of the covenants mentioned thereof on the part of the sublessee would be final and binding and shall not be called into question by the sub lessee in any manner whatsoever."
(3.) Paragraph 6 of the lease deed is the centre of attack by the learned counsel for the parties. Mr. Mullick, learned advocate for the plaintiff/appellant urged that the matter of arbitration has been trusted upon the plaintiff/appellant although that lease deed does not contain any arbitration clause as would be evident from a reading of the different clauses in the lease deed not indicating that any arbitration clause has been included in the lease deed. According to Mr. Mullick, clause 6 of the lease deed cannot be construed to be an arbitration clause as in the said clause there is no expression like "arbitration" and "reference". He further contended that the letter of reference to arbitration written by the respondent does not show that the named arbitrator was the authorised nominee of the Managing Director. It was.contended by Mr. Mullick that even assuming there was an arbitration clause and the named arbitrator was the authorised nominee of the Managing Director of the respondent, then also the question of referring the matter to arbitration could not arise at all as no dispute arose for reference to-arbitration.;