BEFORE THE HON’BLE CIVIL JUDGE, (JUNIOR
DIVISION) REWARI
CS / OF 20
M/s Shiv Enterprises …Plaintiff
Versus
Bharti airtel Ltd. & Others …Defendants
Application under Section 8 read with Section 5 of
Arbitration and Conciliation Act, 1996.
RESPECTFULLY SHOWETH :
1. That the above mentioned suit filed by the plaintiff is
pending before this Hon’ble Court and is fixed for hearing on
__.__.2024.
2. That the present suit has been filed by the plaintiff, for seeking
a decree of possession for House no. 38-P, Sector 10, Urban
Estate, Ambala City, demanding the removal of a tower and
associated equipment installed by the defendants, and restoration
of the property to its original condition. Additionally, the plaintiff
demands a decree of Mandatory Injunction for the defendants to
dismantle their installations and a decree of recovery for Rs.
11,07,000/-, representing arrears of license fee, interest, and other
expenses from 03.07.2020 to 02.07.2023, alongside future mesne
profits/compensation at Rs. 25,000/- per month from 03.07.2023
until possession is handed over. The suit, encompassing claims
for interest on the total amount from the filing date until
realization. It is pertinent to mention here that even the NOC
from Municipal Corporation, Ambala City which was duly given
on date 1/12/2021.
3. That the bare perusal of the Leave and License Agreement
clearly shows that the terms and conditions of the same contains
an arbitration clause in as much as it has been stated that in case
of any dispute between the parties in respect of the
contract/order, the same shall be referred to the Sole Arbitrator.
Clause 8.5 of the Leave and License agreement is being
reproduced below for the kind perusal of this Ho’ble Court :-
“8.5. Jurisdiction:
This Agreement shall be construed in accordance with
applicable laws of India and any dispute arising from
the subject matter of this Agreement shall be adjudicated
in the Court of competent jurisdiction as agreed in
annexure A.
It is further agreed that if any dispute arises between the
LICENSOR and AIRTEL the same shall be referred to
a sole Arbitrator nominated by both the parties in
according to Indian Arbitration and Conciliation Act
1996. The award passed by the arbitrator is final and
binding on both the parties. The Arbitration shall be held
at Chandigarh. The language of the arbitration shall be
English.”
4. That since the parties to the contract have agreed to refer
the matter in case of any dispute to be decided by the Sole
Arbitrator in consonance with the provisions of Arbitration and
Conciliation Act, 1996 and as such the present suit at the behest
of the plaintiff was not maintainable as the plaintiff himself has
stated in the acceptance order dated in case of any dispute, the
matter is required to be adjudicated by the Sole Arbitrator.
Therefore, the present suit filed by the plaintiff cannot proceed
and the matter is required to be referred to the Sole Arbitrator in
terms of the clause 22 of the Arbitration and Conciliation Act,
1996.
5. That as per the provisions of the Arbitration and
Conciliation Act, 1996, Section 5 of the same provides that no
judicial authority shall intervene except where so provided in this
part. Further as per provision Section 8 of the Arbitration and
Conciliation Act, 1996, the Judicial Authority/Court before
which an action is brought in a matter which is subject matter of
arbitration agreement, shall if a party to the arbitration agreement
applies, refer the parties to arbitration unless it finds that prima-
facie no valid arbitration agreement exists. In the present case,
the acceptance order by the plaintiff itself contains an arbitration
clause as stated above and as such in view of the same, the
parties to the agreement having agreed to refer the dispute to
arbitration in consonance with the provisions of Arbitration and
Conciliation Act, 1996, the present suit filed by the plaintiff is
not maintainable and the matter in issue is required to be referred
to the Sole Arbitrator in consonance with the provisions of the
Arbitration and Conciliation Act, 1996.
6. That since it has been time and again held by the Hon’ble
Courts that provision of Section 8 of the Arbitration and
Conciliation Act, 1996 are mandatory and once the application is
filed before the Court before whom the dispute has been pending
adjudication, the court is bound to refer the dispute for arbitration
to be conducted by the Arbitrator as per the provisions of
Arbitration and Conciliation Act, 1996.
7. That in the present case admittedly, there is an arbitration
clause in the acceptance order issued by the plaintiff himself and
as such the plaintiff could not have invoke the jurisdiction of this
Hon’ble Court by filing the present suit and was required to refer
the matter to be adjudicated and decided by the Sole Arbitrator as
the dispute in respect of the Leave and License agreement dated
– 15/12/2020 has arisen between the parties. Therefore, once the
parties to the agreement have agreed to refer the matter to
Arbitrator in case of any dispute, the present suit at the behest of
the plaintiff was not maintainable.
8. That since the defendants are yet to file their written
statement/ first statement on the substance of the dispute and as
such as per the provisions of Section 8 of Arbitration and
Conciliation Act, 1996, the present application is being filed by
the defendants for referring the dispute to the Sole Arbitrator to
be appointed in consonance with the provisions of Arbitration
and Conciliation Act, 1996.
9. That the present suit cannot be proceed further and the
matter in dispute/issue is required to be adjudicated by the Sole
Arbitrator in accordance with the provisions of Arbitration and
Conciliation Act, 1996 and this Hon’ble Court cannot adjudicate
the dispute which has arisen between the parties including the
recovery of the amount as claimed by the plaintiff on account of
the purchase order and acceptance order issued by the defendants
and plaintiff, therefore, the matter in issue is required to be
referred to the Sole Arbitrator.
10. That since the plaintiff himself relying upon the provisions
of the Leave and License Agreement which includes an
arbitration clause, therefore, the matter in issue is required to be
referred to the Sole Arbitrator for adjudication.
It is, therefore, respectfully prayed that the present
application may kindly be allowed and the matter may kindly be
referred to Arbitration in consonance with the terms and
conditions of the agreement and provisions of Arbitration and
Conciliation Act, 1996 in the interest of justice.
Defendant
Through Counsel
Ambala (Vishal Gupta)
Dated : Advocate
Counsel for the Defendants
