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Madras High CourtA/10146/2018disposed of

M/S.Ru-Ah Ministeries v. Mr.B.Anand Raja Durai

2019-01-11Honourable Mr Justice M. Govindaraj4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 11TH DAY OF JANUARY 2019 THE HON'BLE MR.JUSTICE M.GOVINDARAJ A.NO.10146 of 2018 in O.P. No.665 of 2018 In the matter of Arbitration and Conciliation Act and In the matter of Arbitration as per the Lease Agreement dated 10.12.2013, between Mr.B.Anand Raja Durai and M/s.RU-AH Ministries, Rep.by its Managing Trustee.

Mr.B.Anand Raja Durai "Good Shepherd Square"

Door No.82, Kodambakkam High Road Nungambakkam Chennai - 600 034.

...Petitioner

-VsM/s.RU-AH Ministeries Rep.by its Managing Trustee No.20/28, Dr.Ambedkar Main Road Samiyar Madaum Bus Stop (Opp. HDFC Bank and behind Madras Kitchen) Kodambakkam, Chennai - 600 024.

...Respondent

A.No.10146 of 2018:

M/s.RU-AH Ministeries Rep.by its Managing Trustee No.20/28, Dr.Ambedkar Main Road Samiyar Madaum Bus Stop (Opp. HDFC Bank and behind Madras Kitchen) Kodambakkam, Chennai - 600 024.

...Applicant/Respondent Mr.B.Anand Raja Durai "Good Shepherd Square"

Door No.82, Kodambakkam High Road Nungambakkam Chennai - 600 034.

...Respondent/Petitioner

Application praying that this Hon'ble Court be pleased to condone the delay of 68 days in filling the petition to setaside the Order dated 07.08.2018 passed by the Hon'ble Court of Judicature at Madras.

This Application coming on this day before this Court for hearing the court made the following order: The applicant is the tenant and the respondent is the landlord. Originally the petition under Rent Control Act was filed for eviction on the ground of willful default. During the pendency of the above eviction petition, the applicant/tenant submitted that the matter shall be referred to an Arbitrator and filed a petition to that effect. But that was not accepted by the respondent and ultimately the Rent Control proceedings were continued and concluded and the applicant handed over the key to the respondent/landlord. After the eviction of the premises, the respondent issued notice to the applicant demanding payment of arrears of rent to the tune of Rs.1,05,41,427/- . According to the applicant, he was out of India and has not received any notice, it was received by somebody else. However, the respondent issued another notice invoking Arbitration Clause, even that, according to the applicant was not received by him. Thereafter, the respondent

approached this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996, and this Court ordered notice to the respondent. Again the notice was received on behalf of the applicant by someone else. This Court appointed a Retired Judge of this Court as an Arbitrator. The applicant has appeared before the Arbitrator, on receipt of notice from him. He pleads that the respondent having objected for invocation of Arbitration Clause, during the pendency of the eviction proceedings, now cannot go back and ask for referring the matter to Arbitration. He has primary objection as to the conduct of respondent and to the maintainability of Arbitral dispute.

2.I have considered the rival submissions.

3.Admittedly, there is an agreement containing Arbitration Clause between the parties and an Arbitrator was also appointed pursuant to the application under Section 11 (6) of the Arbitration and Conciliation Act, 1996. The applicant has no grievance, insofar as the appointment of a Retired High Court Judge as an Arbitrator. The grievance of the applicant as of now is with regard to the conduct of the respondent in seeking referral notice issued to arbitration. It is true that the respondent objected to the referral of the matter during the pendency of the eviction proceedings.

4.In law, when there are special statutes protecting the rights of the parties is available and in matters where elaborate evidence is required to decide question of law, which are matters "in rem" it is always

preferable to pursue the remedy under the provisions of that special statute and those cases are not fit for arbitration. In such a view of the matter, the objection raised by the respondent during the pendency of the eviction proceedings is justified. Now that the eviction proceedings are over and the applicant had admittedly handed over the possession of the rented premises to the respondent.The issue presently referred for arbitration is for damages, which is lying in the hands of the applicant towards rental arrears. In such cases, arbitration is maintainable and more particularly, when there is an arbitration clause in the agreement, it shall be referred only to arbitration. If at all the applicant has any grievance with regard to the same, he can raise all those issues before the Arbitrator. Having consented to the arbitration proceedings and having no grievance about the appointment of Arbitrator, the applicant now cannot sustain the present application to set aside the order appointing an Arbitrator.

5. Considering the above facts, this Court is of the view that the application is not maintainable and accordingly, is dismissed, giving liberty to the applicant to raise all the issues before the Arbitrator. sd/.M.G.R.J.

11.01.2019 //Certified to be a true copy// Dated this the th day of 2019. DL/29.01.2019 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.