I. P. Mukerji, J. - (1.) The Court : This is an application made by the respondent in arbitration proceedings, praying for setting aside of the order dated 31st July, 2017 in AP No. 304 of 2017 (Renuka P. Gandhi-Versus-Oriental Gems Private Limited), appointing a retired Judge of this Court as the Arbitrator.
(2.) The ground is that subsequent to that order the Supreme Court has pronounced its decision in Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia, 2017 10 SCC 706. Certain paragraphs from that judgment are brought to this Court's notice, viz. paragraphs 20, 21, 22 and 24, which are set out herein below: "20. This Court (three-Judge Bench) speaking through O. Chinnappa Reddy, J. rejected the application filed by the tenant under Section 8 of the Act and held, inter alia, that the civil suit filed by the landlord was maintainable. It was held that the disputes of such nature cannot be referred to the arbitrator. This is what their Lordships held as under : (Natraj Studio Case7, SCC P. 536, para 24) "24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Coop. Bank Ltd.v. Dalichand Jugraj Jain9, the Court of Small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent licensor-landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant licensee-tenant. That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee-tenant and the dispute between them relating to the possession of the licensed demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the arbitrator has none to adjudicate upon the dispute between the parties." 21. Yet in another case of Booz Allen & Hamilton Inc.8, this Court (twoJudge Bench) speaking through R.V. Raveendram, J. laid down the following proposition of law after examining the question as to which cases are arbitrable and which are non-arbitrable: (SCC pp. 546-47, para 36) "36. The well-recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes." 22. Keeping in view the law laid down by this Court in the aforementioned two decisions and applying the same to the facts of this case, we have no hesitation to hold that both the courts below were right in dismissing the appellant's application filed under Section 8 of the Act and thereby were justified in holding that the civil suit filed by the respondent was maintainable for grant of reliefs claimed in the plaint despite parties agreeing to get the disputes arising therefrom to be decided by the arbitrator. 24. The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the civil court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises."
(3.) Mr. Sarkar submits that if this decision of the Supreme Court is to be applied, any landlord-tenant dispute would have to be resolved in a civil forum.;