Saurabh Mishra vs. Devshankha Mukherjee

ORDER

OD – 11 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURI ICTION ORIGINAL SIDE AP/74/2026 HON'BLE JUSTICE GAURANG KANTH Date: September 29, 2026. Appearance:- Mr. Satyam Mukherjee, Adv. Mr. Rasu Kundu, Adv. Ms. D. Biswas, Adv. ...for petitioner.

The Court:- The petitioner has preferred the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole Arbitrator to adjudicate the disputes and differences which have arisen between the parties out of the Leave and License Agreement dated 24th September, 2021. Learned counsel for the petitioner submits that the petitioner is the absolute owner and has leasehold right, title and interest in respect of a commercial space admeasuring 828 sq. feet super built area situated at DGK- 137, 1st Floor, DLF The Galleria, BG/8, Action Area I, New Town, North 24 Paraganas, West Bengal – 700156. The petitioner entered into a duly notarized and unregistered Leave and License Agreement dated 24thSeptember, 2021 with the respondent in respect of the said premises. It is submitted that as per clause 3.2 of the 2

said agreement, it was agreed by and between the parties that the leave and license rights of the licensed premises will be for a period of three years unless otherwise terminated by licensor/petitioner or surrendered by the licensee/respondent at an earlier date. It was further agreed therein that the periodof the said agreement shall be extendable for two consecutive periods of three years each. It was further submitted that as per clauses 3.5, 3.6 and 3.8 of the said agreement it was further agreed that the license fees in respect of the licensed premises would be Rs.43,900/- only per month plus applicable GST with an escalation of 5% every twelve months as stipulated in the agreement. Learned counsel for the petitioner states that in terms of the said agreement, the possession of the said premises was duly handed over to the respondent on 24.09.2021. Disputes and differences arose between the parties due to non paymentof the monthly license fees by the respondent. Learned counsel for the petitioner states that the respondent by email dated 10.09.2022 informed the petitioner of her inability to continue payment of the license fee on account of business difficulties from the month of October, 2022. Despite such communication, the respondent did not vacate the premises. Subsequently, in January 2023, the petitioner states that during the pendency of present petition under Section 11, the respondent vacated the said premises. The petitioner had issued a notice under Section 21 of the Act dated 25th September, 2025 invoking the arbitration proceedings as contemplated under the Leave and License Agreement which was received by the respondent on 27.09.2025. 3

It is submitted by the petitioner that he had initially instituted a suit being TS/790/2023 which was withdrawn by the petitioner vide order dated 22.09.2026. The petitioner further states that the said notice under Section 21 was duly replied to by the respondent vide reply dated 09.01.2025 wherein the respondent acknowledged the existence of the Leave and License Agreement but denied the appointment of the arbitrator as suggested by the petitioner. This Court heard the submission advanced by the learned counsel for the petitioner and perused the materials placed on record. This Court is of the prima facie view that the Leave and License Agreement dated 24th September, 2021, was duly executed between the parties. The said Leave and License Agreement contains a valid arbitration clause, wherein any dispute between the parties shall be referred to arbitration. In terms of the said Leave and License Agreement, the petitioner had duly issued the notice under Section 21 of the Act invoking the arbitral proceedings. The same was replied to by the respondent wherein the respondent had admitted the existence of the Leave and License Agreement, though she had neither agreed to the appointment of a sole Arbitrator nor took any steps in furtherance of the constitution of the Arbitral Tribunal. It is now well settled principle of law that the juri iction of the court under section 11 of the Arbitration and Conciliation Act, 1996 is confined to a prima facie examination of the existence and validity of the arbitration agreement.

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As per section 11(6A) of the Act“the Supreme Court or as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall notwithstanding any judgment decree or order of any court, confine to the examination of the existence of an arbitration agreement.” Accordingly, at the stage of exercising juri iction under Section 11 of this Act, this Court is only required to examine the existence of a valid arbitration agreement containing an arbitration clause. In view of the same, this Court is, therefore, satisfied that the requirements under Section 11(6) of the Act stand fulfilled and that the disputes between the parties are fit to be referred to arbitration. In view of the same, this Court appoints Ms. Anamika Pandey, Advocate (Mobile No: 8336835229) as a sole Arbitrator to adjudicate the disputes between the parties. The learned Sole Arbitrator shall enter upon the reference after making the disclosure in terms of Section 12(1) of the Act and subject to the provisions of Section 12(5) thereof. The learned Sole Arbitrator shall fix his remuneration in terms of the Fourth Schedule of the Act or as may be agreed between the parties. A copy of this order shall be communicated to the learned Sole Arbitrator to take necessary steps. It is clarified that all questions relating to the arbitrability of the disputes, maintainability, the admissibility of the claims, limitation,

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juri iction, and all other issues are left open to be urged before the learned Sole Arbitrator, who shall decide the same in accordance with law. With the aforesaid directions, the present petition stands disposed of.

(GAURANG KANTH, J.) R. D. Barua