Bimla Devi Jaiswal vs M/S. Indus Towers Limited

The affidavit-in-opposition and the reply are filed in Court and are taken on record.

The disputes between the parties in this application are under Section 9 of The Arbitration and Conciliation Act, 1996 (the Act) appear to involve

around roof-rights of a building where the respondent has constructed a mobile tower. The claim in the present petition relates to unpaid occupational

charges which, according to the petitioner, has been paid by the respondent to other parties in derogation of the terms of the two agreements executed

between the petitioner and the respondent in 2001 and 2014.

Learned counsel appearing for the petitioner is aggrieved by the action of the respondent in failing to pay occupational charges for use of the roof of

the particular premises and paying the same to the other flat owners of the premises. According to counsel, the respondent has paid the amounts

which should have come to the petitioner and instead made the same to the respective flat owners. It is also submitted that the petitioner has obtained

an order of injunction against the flat owners from disturbing the petitioner’s rights in the roof in a suit filed by the petitioner against the flat

owners from the City Civil Court. It is also submitted that the petitioner cannot be deprived of its rightful dues for the respondent’s lack of access

to the roof for a period of 7-8 days. It is also the petitioner’s case that a notice of eviction has been served by the petitioner on the respondent in

December, 2020.

Learned counsel appearing for the respondent takes a preliminary objection to the maintainability of the application on the ground that in the

supplementary agreement of 14th May, 2014, there is no specific incorporation of the arbitration clause contained in the earlier agreement of 19th

January, 2001. Counsel feigns ignorance of any order of injunction passed by the City Civil Court relating to the petitioner’s undisturbed use of the

roof. Counsel places correspondences between the parties in 2018 which records the petitioner virtually giving up on the continuing imbroglio on the

use of the roof for the mobile tower. It is also submitted that the two agreements are unregistered and unstamped documents and is not a licence

agreement at all.

Upon hearing learned counsel, it appears that the only relief sought by the petitioner is in the nature of monetary compensation on account of arrear

license fees till 31st December, 2020. The petitioner has not prayed for any other relief in relation to either the petitioner’s use of the roof or

restraining the respondent from the use of the roof. It also appears from the letters exchanged by the parties on 3rd September, 2018 and 14th

November, 2018 that the right to use of the roof in respect of the mobile towers continued to remain obstructed. In fact, the letter written by the

petitioner’s lawyer on 14th November, 2018 clearly records that the petitioner did not have access to the roof of the premises as on that date for

which the petitioner was constrained to file a suit in the City Civil Court. In the said letter, the petitioner had in fact asked for “breathing spaceâ€

for obtaining suitable orders in the said proceedings.

It appears from the material on record that the basis of the petitioner’s claim, namely, payment of arrear occupational charges is a matter which

can be sorted out in arbitration and no interim orders of protection are called for nor claimed in the petition. The point of the arbitration clause being in

dispute and not being specifically incorporated in the later agreement between the parties is an issue which can also be decided in arbitration in

accordance with the view of the Supreme Court in Inox Wind Limited vs. Thermocables Limited (2018) 2 SCC 519. The petitioner has not been able

to make out a case of any urgent nature of relief or protection as provided under Section 9 of the Act. The dispute is of 2018 and appears to have

continued till filing of the present application in April, 2021, which further suggests that there is no urgency for interim orders in this application. The

parties are at liberty to thrash out their differences in arbitration, if they so wish, but no interim orders at this stage are called for.

AP No. 257 of 2021 is accordingly dismissed without any order as to costs.