Bimla Devi Jaiswal vs M/S. Indus Towers Limited

We admit the appeal.

We propose to hear out the appeal dispensing with all formalities.

As the respondent is represented by learned counsel, issuance and service of the notice of appeal are dispensed with.

We dispense with the other formalities and expedite hearing of the appeal.

Let informal paper books be filed by learned advocate-on-record for the appellant by 10th September, 2021, serving a copy thereof upon the advocate-

on-record for the respondent at least seven days before the date of hearing of the appeal.

List the appeal (APO No.97 of 2021) “For Hearingâ€​ on 20th September, 2021.

The learned single judge while refusing to pass an interim order, remarked that the dispute was of 2018 and continued till filing of the application by the

appellant under Section 9 of the Arbitration and Conciliation Act, 1996 in April, 2021. Hence, there was no urgency according to her ladyship and that

the parties were at liberty to “thrash out their differences in arbitrationâ€​.

Mr. Mitra, learned senior counsel appearing for the respondent submits another point. There is no valid arbitration agreement between the parties.

Learned counsel, at this admission stage of the appeal, took us through some essential facts. The subject agreement between the parties conceived of

setting up of a mobile phone transmission tower and reception by the respondent in the premises in question. It was to be set up in specified areas of

the premises as described in the schedule to the agreement dated 19th January, 2001. One of the specified areas included a portion of the roof.

Admittedly, since April, 2018, the respondent did not pay the licence fee mentioned in the agreement, which was Rs.35,752/- every month. The

agreement expired on 31st December, 2020.

Mr. Banerjee, learned advocate appearing for the appellant submits that under the said agreement, the respondent was bound to pay licence fee. After

its expiry by efflux of time, the respondent is liable to pay occupation charges.

Mr. Mitra on the other hand, inter alia, submits that the appellant has no right, title and interest on inter alia, the roof or as a matter of fact in the

premises, having sold out her share. The respondent was praying licence fee to the society.

To this, Mr. Banerjee replied that as a tenant or licensee, the respondent could not deny the landlord or lessor’s title and are bound to pay

occupation charges.

Furthermore, his client continued to be the owner of the portion in the said premise where the respondent has made their installation. He conceded that

at least for the time being, the respondent be compelled to pay occupation charges at in the same rate as in the agreement, after its expiry on 31st

December, 2020 without prejudice to the rights and contentions of the parties.

First of all, the appellant did not exercise her right from April, 2018 till 2021 as pointed out by the learned single judge. Secondly, the learned single

judge after exchange of affidavits in the interim application has ruled against any interim order.

The fact remains that the occupation of the respondent was at least initially under the agreement dated 19th January, 2001.

Although, the respondent says that the appellant has no subsisting right, title and interest in the said area this question of fact is highly disputed.

The respondent continues to be in occupation but has recognized the society as its landlord/licensor and pays licence fees to it.

The exact relationship between the parties will become clear at the hearing of this appeal or in the arbitration.

But on the existing facts, there is some substance in the submission of Mr. Banerjee.

Taking all factors into account, we direct that without prejudice to their rights and contentions, the respondent shall deposit with their advocate-on-

record, ad hoc sum, a sum of Rs.5 lakhs which the advocate-on-record shall invest in his name as a Special Officer in a term deposit with State Bank

of India, Kolkata, High Court Special branch at the highest rate of interest available, to the credit of this appeal, upon intimation to the applicant and

furnish to them half yearly statements of accounts. He shall keep that deposit renewed from time to time.

The stay application (GA No.1 of 2021) is, accordingly, disposed of.