ARINDAM SINHA, J - (1.) The Court : This arbitration petition carries prayer for Court to appoint substitute arbitrator. Mr. Chowdhury, learned Advocate appears on behalf of petitioner and submits, reference was compelled on his client approaching this Court by arbitration petition invoking section 11 of Arbitration and Conciliation Act , 1996. Arbitrator was appointed and interim award of eviction made after which the reference continued on disputes regarding assessment of mesne profits. Respondent in the reference moved Court of District Judge for finding that arbitrator had been defacto unable to perform his functions since he had been appointed as authority by neighboring state. The arbitrator on coming to know of respondent having so moved, promptly withdrew from his office. He submits, clause (b) in sub-section (1) of section 14 thus stands satisfied. Procedure to be followed is for appointment by Court by applying provision in sub-section (2), section 15 . This is because appointment of arbitrator, who has withdrawn from office, was by Court having taken necessary measure to have appointed him under section 11 .
(2.) Mr. Kundu, learned senior Advocate appears on behalf of respondents. He relies on judgment of Supreme Court in Himangni Enterprises V. Kamaljeet Singh Ahluwalia reported in (2017)10 SCC 706 as also AIR 2017 SC 5137. He submits, law declared by Supreme Court in Booz Allen & Hamilton Inc. V. SBI Home Finance Limited & Ors. reported in (2011)5 SCC 532 had scope of it widened by Himangni(supra). He relies on paragraph 26 in AIR as is reproduced below:- " 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Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises.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.) On query from Court he submits, defence taken by his client before arbitrator in resisting eviction did not include contention of tenancy protected under West Bengal Premises Tenancy Act, 1997.;