2026 INSC 5 Page 1 of 31

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 36 of 2026

(@ Special Leave Petition (Civil) No. 5834 of 2025)

Motilal Oswal Financial

Services Limited …Appellant(s)

VERSUS

Santosh Cordeiro and Another …Respondent(s)

J U D G M E N T

K.V. Viswanathan, J.

1. Leave granted.

2. The present appeal calls in question the correctness of

the order dated 02.05.2024 passed by the Single Judge of the

High Court of Judicature at Bombay in Commercial Arbitration

Application No.9 of 2024. By the said order, the learned Single

Judge allowed the Section 11 Application filed by the

respondent under the Arbitration & Conciliation Act, 1996 (for

short “the A&C Act”) and appointed an arbitrator to

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adjudicate the dispute between the parties. The only

objection taken by the appellant herein was that the dispute is

non-arbitrable in view of Section 41 of the Presidency Small

Cause Courts Act, 1882 (for short “the 1882 Act”). The learned

Single Judge made a short shrift of the said objection by

holding that the place where the property in question, which

was the subject matter of the dispute, was situated, i.e. Malad,

was outside the jurisdiction of the Small Causes Court. This

finding has now turned out to be a damp squib, since parties

before us are ad idem that Malad area is covered under the

jurisdiction of the Small Causes Court. We could have rest

content by remanding the matter to the High Court for fresh

consideration. However, that will only prolong the dispute

and, hence, we have decided to answer the issues arising in

the case ourselves.

BRIEF FACTS OF THE CASE: -

3. With regard to the premises situated at Unit No.718,

admeasuring 2925 sq. ft., 7

th

Floor, Palm Spring Centre, Link

Road, Malad (West), Mumbai, the appellant entered into a

Page 3 of 31

Leave and License Agreement on 06.10.2017 with the

respondent. The period of the Leave and License was 60

months from 01.10.2017 to 30.10.2022. Though the appellant

terminated the said agreement on 31.12.2019, after exchange

of correspondence between the parties, the said termination

was reversed and an Addendum dated 13.03.2020 was

entered into extending the Leave and License period from 60

months to 96 months with a lock-in period of 72 months.

4. According to the appellant, due to COVID-19 pandemic,

they were unable to continue the arrangement and citing the

force majeure clause in the agreement, they handed over the

keys and vacant peaceful possession of the premises to the

respondent on 09.09.2020. According to the appellant, they

intimated the respondents about the same on 10.10.2020 by

writing an email. The appellant also sought refund of the

security deposit.

5. On 28.06.2023, the respondent No.1 called upon the

appellant to pay a sum of Rs.94,40,152/- along with interest @

24% towards the alleged arrears of license fees for the

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balance lock-in period i.e. from 01.09.2020 to 14.06.2023. The

appellants wrote back on 17.07.2023 denying any liability and

seeking refund of security deposit of Rs. 10 lakhs.

6. The appellant on 17.07.2023 received a notice dated

15.07.2023 issued by the respondent under Section 21 of the

A&C Act invoking Clause 33 of the arbitration agreement of

the Leave and License Agreement dated 06.10.2017 and

Addendum dated 13.03.2020. Clause 33 of the Leave and

License Agreement dated 06.10.2017 reads as under: -

“In the event of the any dispute or difference arising

between the Licensors and the Licensee hereto

concerning or relating to the interpretation of these

presents or the interpretation or effect of any provisions

thereof or relating to the liability or obligation on the part

of any of the parties hereto, the same shall be referred to

arbitration and Sole Arbitrator shall be appointed by the

mutual consent of the Parties. The award passed by the

sole arbitrator shall be binding on both the parties. The

arbitration shall be in Mumbai and in accordance with and

subject to the provisions of the Arbitration and

Conciliation Act, 1996 or any statutory modification or re-

enhancements thereof for the time being in force.”

This was followed by an application under Section 11 of the

A&C Act filed on 13.08.2023 by the respondent seeking

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appointment of a sole arbitrator in accordance with clause 33

set out above.

7. On 01.11.2023, the appellant filed its reply objecting to

the appointment of the arbitrator and specifically relied on

Section 41 of the 1882 Act and contended that only the Small

Causes Court would have exclusive jurisdiction to entertain

and try any suit or proceeding arising from the relationship

between a licensor and licensee and that since the said statute

is a special remedy, the dispute is not arbitrable. The High

Court, by its order dated 02.05.2024, allowed the application

and appointed the arbitrator.

8. Section 41 of the 1882 Act reads as under:-

“41. Suits or Proceedings between licensors and

licensees or landlords and tenants for recovery of

possession of immovable property and license fees or

rent, except to those to which other Acts apply to lie in

Small Cause Court.- (1) Notwithstanding anything

contained elsewhere in this Act but subject to the

provisions of sub-section (2), the Court of Small Cause

shall have jurisdiction to entertain and try all suits and

proceedings between a licensor and licensee, or a

landlord and tenant, relating to the recovery of possession

of any immovable property situated in Greater Bombay,

or relating to the recovery of the licence fee or charges or

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rent therefor, irrespective of the value of the subject-

matter of such suits or proceedings.

(2) Nothing contained in sub-section (1) shall apply to

suits or proceedings for the recovery of possession of any

immovable property, or of licence fee for charges of rent

thereof, to which the provisions of the Bombay Rents,

Hotel and Lodging House Rates Control Act, 1947, the

Bombay Government Premises (Eviction) Act, 1955, the

Bombay Municipal Corporation Act, the Maharashtra

Housing and Area Development Act, 1976 or any other law

for the time being in force, apply.”

9. Proceedings before the arbitrator were carried on. On

03.06.2024, the appellant raised the ground of non-

arbitrability under Section 41 of the 1882 Act and filed a

Section 16 application under the A&C Act before the

arbitrator. On 11.10.2024, the arbitrator dismissed the Section

16 application by holding that the amount sought to be

recovered partakes the character of a ‘debt’ and is not a claim

for license fee for use and occupation. On 28.01.2025, the

Special Leave Petition was filed before this Court and this

Court, on 21.02.2025, stayed the impugned order. That is how

the matter presents itself before us.

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10. We have heard Mr. Chirag M. Shah, learned advocate,

for the appellant and Mr. Rishabh Shah, learned advocate for

the respondents. We have perused the records as well as

written submissions filed by the respective parties.

CONTENTIONS OF THE APPELLANT: -

11. The learned counsel for the appellant contends that in the

Section 11 application filed by the respondents, a clear case

for recovery of license fee was sought, and expressly it was

stated that the amount claimed did not partake the character

of damages; that the reliance on the judgment of the Division

Bench of the Bombay High Court in Globsport India Pvt. Ltd.

vs. Mayfair Housing Pvt. Ltd

1 was untenable in view of the

Full Bench judgment of the Bombay High Court in Central

Warehousing Corporation, Mumbai v. Fortpoint Automotive

Pvt. Ltd., Mumbai

2; that Central Warehousing (supra) clearly

holds that exclusive jurisdiction is conferred on the Court of

Small Causes to entertain and decide all suits and

1

(2015) OnLine Bom 4176

2

2009 SCC OnLine Bom 2023

Page 8 of 31

proceedings between a licensor and licensee or a landlord

and tenant relating to recovery of possession or recovery of

license fee/rent in respect of premises situated in Greater

Bombay; that this Court in Natraj Studios Private Limited. v.

Navrang Studios and Another

3, while interpreting a pari

materia provision held that the parties could not contract out

of a special legislation that conferred exclusive jurisdiction

over landlord-tenant disputes to the Small Causes Court; that

as long as the suit was between a licensor and licensee or a

landlord and tenant, concerning immovable property,

relating to recovery of possession or recovery of license fee,

charges or rent, it will lie only before the Small Causes Court

and the jurisdiction of all other courts is ousted; that the 1882

Act is a special legislation with a special purpose and grants

exclusive jurisdiction on special courts which have been set

up under such legislation and that in Booz Allen and Hamilton

Inc vs. SBI Home Finance Limited And Others

4, this Court

3

(1981) 1 SCC 523

4

(2011) 5 SCC 532

Page 9 of 31

held that tenancy/licensor/licensee disputes governed by

special statutes are not arbitrable.

CONTENTION S OF THE RESPONDENT: -

12. The learned counsel for the respondent submitted the

only exclusion in Clause 35

5

of the agreement was that the

arbitrator was not to have power to interfere or arbitrate on

issue of vacating the premises on expiry of license period and

there was no bar to arbitrate on the obligation on the parties

to pay the license fee/rent/use and occupation charges; that

the dispute was only for payment of compensation for the

“balance lock-in period”; that the claim of the respondents is

neither for recovery of possession nor license fee; that the

respondents’ case is supported by the judgment in Globsport

(supra); that the judgment in Vidya Drolia And Others vs.

Durga Trading Corporation

6, (hereinafter called Vidya Drolia

- II), makes it clear that mere conferral of jurisdiction on a

5

The reference to arbitration will in no way affect the obligation of the Licensee to vacate the licensed premises

on the expiry or earlier determination of the License period and the arbitrators shall have no power to interfere

with or arbitrate on issue of vacating the licensed premises on expiry of the licensed period.

6

(2021) 2 SCC 1

Page 10 of 31

specific court or creation of a public fora would not be

decisive to answer the issue of arbitrability or otherwise of a

dispute; and that no statutory protection under the

Maharashtra Rent Control Act was denied to the appellant.

QUESTION FOR CONSIDERATION : -

13. In the above background, the question for consideration

is whether the High Court has rightly allowed the application

filed by the respondent under Section 11 of the A&C Act?

ANALYSIS AND DISCUSSION: -

14. There is no dispute that the Leave and License agreement

of 06.10.2017, in Clause 33, contained an Arbitration clause. In

a proceeding under Section 11 of the A&C Act, the Court is to

confine the examination to the existence of an Arbitration

Agreement. Section 11 (6-A) which was brought into force

with effect from 23.10.2015, though omitted by Act 33 of 2019,

the omission has not yet been notified.

15. Section 11(6A) of the A&C Act is reproduced hereunder:-

“11. Appointment of arbitrators.—(1) xxx xxx .

(2) xxx xxx

(3) xxx xxx

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(4) xxx xxx

(5) xxx xxx

(6) xxx xxx

(6A) 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.”

16. A Seven Judge Bench of this Court in In re Interplay

Between Arbitration Agreements under Arbitration and

Conciliation Act, 1996 & Stamp Act, 1899

7, (hereinafter called

as ‘In re-Interplay’) while dealing with the aspect of how Vidya

Drolia (Supra) proceeded on the assumption that Section

11(6-A) has been omitted, clarified the position thus:-

“62. A plain reading of Section 11(6-A) makes it evident that

it is referring to an arbitration agreement. Section 11(6-A)

provides that courts must confine themselves to an

examination of the existence of the arbitration agreement.

The word “confine” indicates the intention of the legislature

to limit the jurisdiction of the Courts at the stage of the

appointment of an arbitrator.

63. In Vidya Drolia [Vidya Drolia v. Durga Trading Corpn.,

(2021) 2 SCC 1], this Court held : (SCC p. 49, para 21)

“21. The term “agreement” is not defined in the Arbitration

Act, albeit it is defined in Section 10 of the Contract Act, 1872

(for short “the Contract Act”), … as contracts made by free

7

(2024) 6 SCC 1

Page 12 of 31

consent of parties competent to contract, for a lawful

consideration and with a lawful object, and are not thereby

expressly declared to be void. Section 10 of the Contract Act

also stipulates that aforesaid requirements shall not affect any

law in force in India (and not expressly repealed) by which a

contract is required to be made in writing, in presence of

witnesses or any law relating to registration of documents.

Thus, an arbitration agreement should satisfy the mandate of

Section 10 of the Contract Act, in addition to satisfying other

requirements stipulated in Section 7 of the Arbitration Act.”

64. The above observations are correct insofar as the

arbitration agreement must satisfy the requirements of the

Contract Act. However, the authority empowered to

adjudicate whether the requirements of the Contract Act are

satisfied is the Arbitral Tribunal, under Section 16 of the

Arbitration Act. This is addressed in greater detail in the

following segments.

163. We are of the opinion that the above premise of the

Court in Vidya Drolia [Vidya Drolia v. Durga Trading Corpn.,

[(2021) 2 SCC 1] is erroneous because the omission of Section

11(6-A) has not been notified and, therefore, the said

provision continues to remain in full force. Since Section 11(6-

A) continues to remain in force, pending the notification of the

Central Government, it is incumbent upon this Court to give

true effect to the legislative intent.

164. The 2015 Amendment Act has laid down different

parameters for judicial review under Section 8 and

Section 11. Where Section 8 requires the Referral Court to

look into the prima facie existence of a valid arbitration

agreement, Section 11 confines the Court's jurisdiction to

the examination of the existence of an arbitration

agreement. Although the object and purpose behind both

Sections 8 and 11 is to compel parties to abide by their

contractual understanding, the scope of power of the

Page 13 of 31

Referral Courts under the said provisions is intended to

be different. The same is also evident from the fact that

Section 37 of the Arbitration Act allows an appeal from the

order of an Arbitral Tribunal refusing to refer the parties

to arbitration under Section 8, but not from Section 11.

Thus, the 2015 Amendment Act has legislatively

overruled the dictum of Patel Engg. [SBP & Co. v. Patel

Engg. Ltd., (2005) 8 SCC 618] where it was held that

Section 8 and Section 11 are complementary in nature.

Accordingly, the two provisions cannot be read as laying

down a similar standard.

165. The legislature confined the scope of reference

under Section 11(6-A) to the examination of the existence

of an arbitration agreement. The use of the term

“examination” in itself connotes that the scope of the

power is limited to a prima facie determination. Since the

Arbitration Act is a self-contained code, the requirement

of “existence” of an arbitration agreement draws effect

from Section 7 of the Arbitration Act. In Duro Felguera

[Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9

SCC 729, this Court held that the Referral Courts only

need to consider one aspect to determine the existence of

an arbitration agreement — whether the underlying

contract contains an arbitration agreement which

provides for arbitration pertaining to the disputes which

have arisen between the parties to the agreement.

Therefore, the scope of examination under Section 11(6-

A) should be confined to the existence of an arbitration

agreement on the basis of Section 7. Similarly, the

validity of an arbitration agreement, in view of Section 7,

should be restricted to the requirement of formal validity

such as the requirement that the agreement be in writing.

This interpretation also gives true effect to the doctrine of

competence-competence by leaving the issue of

substantive existence and validity of an arbitration

agreement to be decided by Arbitral Tribunal under

Page 14 of 31

Section 16. We accordingly clarify the position of law laid

down in Vidya Drolia [Vidya Drolia v. Durga Trading

Corpn., (2021) 2 SCC 1 in the context of Section 8 and

Section 11 of the Arbitration Act.

166. The burden of proving the existence of arbitration

agreement generally lies on the party seeking to rely on such

agreement. In jurisdictions such as India, which accept the

doctrine of competence-competence, only prima facie proof

of the existence of an arbitration agreement must be adduced

before the Referral Court. The Referral Court is not the

appropriate forum to conduct a mini-trial by allowing the

parties to adduce the evidence in regard to the existence or

validity of an arbitration agreement. The determination of the

existence and validity of an arbitration agreement on the

basis of evidence ought to be left to the Arbitral Tribunal. This

position of law can also be gauged from the plain language of

the statute.

167. Section 11(6-A) uses the expression “examination of

the existence of an arbitration agreement”. The purport

of using the word “examination” connotes that the

legislature intends that the Referral Court has to inspect

or scrutinise the dealings between the parties for the

existence of an arbitration agreement. Moreover, the

expression “examination” does not connote or imply a

laborious or contested inquiry. [ P. Ramanatha Aiyar,

The Law Lexicon (2nd Edn., 1997) 666.] On the other hand,

Section 16 provides that the Arbitral Tribunal can “rule”

on its jurisdiction, including the existence and validity of

an arbitration agreement. A “ruling” connotes

adjudication of disputes after admitting evidence from

the parties. Therefore, it is evident that the Referral Court

is only required to examine the existence of arbitration

agreements, whereas the Arbitral Tribunal ought to rule

on its jurisdiction, including the issues pertaining to the

existence and validity of an arbitration agreement. A

Page 15 of 31

similar view was adopted by this Court in Shin -Etsu

Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC

234].

169. When the Referral Court renders a prima facie opinion,

neither the Arbitral Tribunal, nor the Court enforcing the

arbitral award will be bound by such a prima facie view. If a

prima facie view as to the existence of an arbitration

agreement is taken by the Referral Court, it still allows the

Arbitral Tribunal to examine the issue in depth. Such a legal

approach will help the Referral Court in weeding out prima

facie non-existent arbitration agreements. It will also protect

the jurisdictional competence of the Arbitral Tribunals to

decide on issues pertaining to the existence and validity of

an arbitration agreement.”

[Emphasis supplied]

17. Hence, it is very clear that our jurisdiction is only to

inspect or scrutinize the dealings between the parties for

determination about the existence of an Arbitration

Agreement. We are not to launch a laborious or a contested

inquiry.

18. Our task would have been much simpler but for the

reliance placed by the learned counsel for the appellant on

the Full Bench judgment of the Bombay High Court in Central

Warehousing (supra). Central Warehousing (supra)

Page 16 of 31

examined the question whether in view of Section 5

8

of the

A&C Act, if in any agreement between licensor and licensee

an arbitration clause exists, the jurisdiction of the Small

Causes Court under the Presidency Small Causes Court Act,

1882, would be ousted.

19. While answering the said question, the Full Bench traced

the legislative history of Section 41(2) of the Act of 1882. It

found that the object of introducing Section 41 in the amended

form, was to avoid multiplicity of proceedings in different

Courts and consequent waste of public time and money and to

avoid unnecessary delay and hardship to the suitors. The Full

Bench found that the objective was to have uniformity of the

procedure so that all suits and proceedings between a

landlord and tenant or a licensor and licensee for recovery of

possession of premises or for recovery of rent or license fee,

irrespective of the value of the subject matter, should go to

and be disposed of by Small Causes Court. The Full Bench

8

Extent of judicial intervention.- Notwithstanding anything contained in any other law for the time being in

force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this

Part.

Page 17 of 31

found that the provision vested exclusive jurisdiction of the

Court of Small Causes to entertain such suits. Ultimately, for

the purpose of our case we only need to deal with the

operative portion set out in Para 40 of the said judgment which

reads as under: -

“40. In summation, we would hold that section 41(1) of the

Act of 1882 is a special law which in turn has constituted

special Courts for adjudication of disputes specified therein

between the licensor and licensee or a landlord and tenant.

The effect of section 41(2) of the Act of 1882 is only the suits

or proceedings for recovery of possession of immovable

property or of licence fee thereof, to which, the provisions

of specified Acts or any other law for the time being in force

apply, have been excepted from the application of non-

obstante clause contained in section 41(1) of the Act. The

expression “or any other law for the time being in force”

appearing in section 41(2) will have to be construed to mean

that such law should provide for resolution of disputes

between licensor and licensee or a landlord and tenant in

relation to immovable property or licence fee thereof, to

which immovable property, the provisions of that Act are

applicable. The Act of 1996 is not covered within the ambit

of section 41(2) in particular the expression “or any other

law for the time being in force” contained therein. The

question whether the exclusive jurisdiction of the Small

Causes Court vested in terms of section 41 of the Act of 1882

is ousted, if an agreement between the licensor and licensee

contains a clause for arbitration, the same will have to be

answered in the negative. For, section 5 of the Act of 1996 in

that sense is not an absolute non-obstante clause. Section 5

of the Act of 1996 cannot affect the laws for the time being in

force by virtue of which certain disputes may not be

Page 18 of 31

submitted to arbitration, as stipulated in section 2(3) of the

Act of 1996. We hold that section 41 of the Act of 1882 falls

within the ambit of section 2(3) of the Act of 1996. As a

result of which, even if the Licence Agreement contains

Arbitration Agreement, the exclusive jurisdiction of the

Courts of Small Causes under section 41 of the Act of

1882 is not affected in any manner. Whereas, Arbitration

Agreement in such cases would be invalid and

inoperative on the principle that it would be against

public policy to allow the parties to contract out of the

exclusive jurisdiction of the Small Causes Courts by

virtue of section 41 of the Act of 1882.”

[Emphasis supplied]

20. The appellant relies on the above paragraph which holds

that the Arbitration Agreement in the situation referred to in

the paragraph would be invalid and inoperative on the

principle that it would be against public policy to allow the

parties to contract out of the exclusive jurisdiction of Small

Causes Court by virtue of Section 41 of the Act of 1882.

21. The learned counsel for the appellant submits that in view

of this holding, even while examining within the contours of

Section 11(6-A) this Court will be obliged to conclude that no

arbitration agreement existed. We are not able to

countenance the submission of the learned counsel for the

appellant for the following reasons: -

Page 19 of 31

I. (a). Firstly, Central Warehousing (supra) has to be

understood in the context in which it came to be

decided. The said context does not obtain here. In

Central Warehousing (supra), the petitioner therein,

issued termination notices terminating the storage

warehouse facilities of the respondent therein – FAP

Limited. In response thereto, the respondent therein

FAP Limited invoked the arbitration clause.

Respondent-FAP Limited thereafter, filed a suit under

Section 41 of the Act of 1882 for a declaration that the

agreement providing storage facility was subsisting

and obtained interim orders restraining the petitioner

therein from giving effect to the termination notices.

The petitioner therein - Central Warehousing raised

an objection based on the provisions of Section 8 of the

A&C Act. The preliminary objection was overruled.

Aggrieved, Central Warehousing approached the

High Court under Article 227 of the Constitution of

India. What is significant to notice is that the

Page 20 of 31

respondent therein FAP Limited was in possession of

the premises.

(b). In the present case, it is undisputed by both

parties that possession had been handed over by the

appellant to the respondents in September 2020. The

dispute between the parties is with regard to a

monetary claim with the appellant asserting that the

security deposit should be repaid by the respondents

and the respondents claiming sums of money towards

alleged arrears of amounts payable for the balance

lock-in period. This aspect is set out only for

explaining the context of the present case and

contrasting with the context in Central Warehousing

(supra).

II. (a). Secondly, pursuant to a reference made to a three-

Judge Bench in Vidya Drolia and Others v. Durga

Trading Corporation

9., (hereinafter called Vidya

9

(2019) 20 SCC 406

Page 21 of 31

Drolia-I), this Court pronounced the judgment in

Vidya Drolia–II (supra). Though the judgment in re -

Interplay (supra) corrected Vidya Drolia-II on the

aspect of the continuance of Section 11(6-A) in the

statute and the interpretation of the said sub-section,

the other aspects in Vidya Drolia-II have not been

diluted in re - Interplay (supra).

(b). Vidya Drolia-II was actually occasioned due to

another judgment of this Court in Himangni

Enterprises v. Kamaljeet Singh Ahluwalia

10, which

had treated cases of ejectment under the Transfer of

Property Act similar to cases of eviction under the Rent

Control Act of the State. The Bench in Vidya Drolia-I

doubted the said judgment and in a detailed referral

order distinguished the applicability of the prior

judgments of this Court in Natraj Studios (supra) and

10

(2017) 10 SCC 706

Page 22 of 31

Booz Allen (supra) to ejectment suits under the

Transfer of Property Act.

(c). While dealing with the aspect of implied bars on

arbitrability, Vidya Drolia-II made the following

pertinent observations: -

“53.Dhulabhai case [Dhulabhai v. State of M.P., (1968) 3

SCR 662 : AIR 1969 SC 78] is not directly applicable as it

relates to exclusion of jurisdiction of civil courts, albeit we

respectfully agree with the order of reference [Vidya

Drolia v. Durga Trading Corpn., (2019) 20 SCC 406] that

Condition 2 is apposite while examining the question of

non-arbitrability. Implied legislative intention to exclude

arbitration can be seen if it appears that the statute

creates a special right or a liability and provides for

determination of the right and liability to be dealt with by

the specified courts or the tribunals specially constituted

in that behalf and further lays down that all questions

about the said right and liability shall be determined by

the court or tribunals so empowered and vested with

exclusive jurisdiction. Therefore, mere creation of a

specific forum as a substitute for civil court or

specifying the civil court, may not be enough to

accept the inference of implicit non-arbitrability.

Conferment of jurisdiction on a specific court or

creation of a public forum though eminently

significant, may not be the decisive test to answer and

decide whether arbitrability is impliedly barred.”

[Emphasis supplied]

What is crucial to notice is that this Court clearly

emphasized that creation of a specific forum as a

Page 23 of 31

substitute for Civil Court or specifying the Civil Court

may not be enough to accept the inference of implicit

non-arbitrability. Conferment of jurisdiction on a

specific court or creation of a public forum though

eminently significant, may not be the decisive test to

answer and decide whether arbitrability is impliedly

barred.

(d). Further for the completion of record, it is also

mentioned herein that Vidya Drolia-II expressly

overruled Himangni (supra) and held as under: -

“79. Landlord-tenant disputes governed by the Transfer

of Property Act are arbitrable as they are not actions in

rem but pertain to subordinate rights in personam that

arise from rights in rem. Such actions normally [Ed. :

Certainly in those cases where the dispute only affects the

parties to the arbitration clause, third-party rights would

not be affected, as in the facts of the present case. It is in

such cases that “such actions under the TPA normally

would not affect third-party rights or have erga omnes

effect”. However, one may consider cases for instance,

where a sub-tenancy exists or where the head lessee has

taken a mortgage on the lease, and the landlord invokes

the arbitration clause against the head lessee seeking to

terminate the head lease, can the sub-tenant or

mortgagee of the head lessee seek to be impleaded in the

arbitration proceedings? For termination of the head

lease would also extinguish the rights of the sub-tenant

Page 24 of 31

and the mortgagee of the head lessee. The situations

posited are relatively simple ones. Often there are

numerous prior and subsequent transferees who might

be affected by the result of a dispute between a landlord

and tenant, or even between other transferees. In such

complex situations involving prior and subsequent

transfers, it would appear that the matter would be non-

arbitrable as it would appear to satisfy the first two tests

of non-arbitrability laid down herein—see Shortnotes B

and C. In a case where the mortgagee is covered by the

RDB Act and the Sarfaesi Act, it might be rendered non-

arbitrable by virtue of the fourth test as well—see

Shortnotes E and G.] would not affect third-party rights or

have erga omnes effect or require centralised

adjudication. An award passed deciding landlord-tenant

disputes can be executed and enforced like a decree of

the civil court. Landlord-tenant disputes do not relate to

inalienable and sovereign functions of the State. The

provisions of the Transfer of Property Act do not

expressly or by necessary implication bar arbitration.

The Transfer of Property Act, like all other Acts, has a

public purpose, that is, to regulate landlord-tenant

relationships and the arbitrator would be bound by the

provisions, including provisions which enure and protect

the tenants.

80. In view of the aforesaid, we overrule the ratio laid

down in Himangni Enterprises [Himangni Enterprises v.

Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 : (2018) 1

SCC (Civ) 82] and hold that landlord-tenant disputes are

arbitrable as the Transfer of Property Act does not forbid

or foreclose arbitration. However, landlord-tenant

disputes covered and governed by rent control

legislation would not be arbitrable when specific court or

forum has been given exclusive jurisdiction to apply and

decide special rights and obligations. Such rights and

Page 25 of 31

obligations can only be adjudicated and enforced by the

specified court/forum, and not through arbitration.”

III. Thirdly, if in this context, Section 41 is appreciated, it

will be clear that Section 41 is a provision conferring

jurisdiction on the Small Causes Court for certain

types of disputes and cannot be interpreted to mean

that ex proprio vigore (by its own force), it neutralizes

arbitration clauses in agreements.

IV. Fourthly, Arbitration clauses have their roots in

Section 28 of the Contract Act, 1872, a provision

completely missed in Central Warehousing (Supra).

Section 28 which speaks of agreements in restraint of

legal proceeding being void, has two important

exceptions. Relevant part of Section 28 and exceptions

are extracted hereinbelow.

“28. Agreements in restraint of legal proceedings,

void.— Every agreement,— (a) by which any party thereto

is restricted absolutely from enforcing his rights under or

in respect of any contract, by the usual legal proceedings

in the ordinary tribunals, or which limits the time within

which he may thus enforce his rights; or (b) which

extinguishes the rights of any party thereto, or discharges

any party thereto, from any liability, under or in respect of

Page 26 of 31

any contract on the expiry of a specified period so as to

restrict any party from enforcing his rights, is void to the

extent.”

Exception 1.—Saving of contract to refer to arbitration

dispute that may arise.—This section shall not render

illegal a contract, by which two or more persons agree that

any dispute which may arise between them in respect of

any subject or class of subjects shall be referred to

arbitration, and that only the amount awarded in such

arbitration shall be recoverable in respect of the dispute so

referred.

Exception 2.- Saving of contract to refer questions that

have already arisen.- Nor shall this section render illegal

any contract in writing, by which two or more persons

agree to refer to arbitration any question between them

which has already arisen, or affect any provision of any law

in force for the time being as to references to arbitration.”

It will be clear that when two or more persons agree to refer a

matter to arbitration, Section 28 will not render that agreement

invalid.

22. Considerable arguments were advanced both in the oral

submissions and in the written note about whether the nature

of the claim is in the form of debt or whether it pertains to a

matter covered by the ambit of Section 41(1). Arguments were

also advanced on the issue as to how the dispute between the

Page 27 of 31

parties is a dispute in personam (as contended by the

respondent) pertaining only to the recovery of a debt as

opposed to the appellant contending that it is a dispute

relating to the recovery of the license fee or charges or rent,

covered under Section 41(1) of the 1882 Act. Reliance was

placed on Natraj Studios (supra) and Booz Allen (supra) by

the appellant and Globsport (supra) by the respondents.

23. In exercise of our jurisdiction under Section 11, we are

not concerned with the said dispute. That will be for the

arbitrator to decide. We have been told that the Arbitrator has

taken a decision on the Section 16 application. If that be so,

parties have to work out their remedies in accordance with

law. As and when such remedies are resorted to, they will be

decided uninfluenced by any of the observations made

herein. All questions between the parties other than the one

answered herein based on Section 11(6-A) of the A&C Act are

left open.

Page 28 of 31

24. Section 16 of the A&C Act reads as under: -

“16. Competence of arbitral tribunal to rule on its

jurisdiction.—(1) The arbitral tribunal may rule on its

own jurisdiction, including ruling on any objections with

respect to the existence or validity of the arbitration

agreement, and for that purpose,—

(a) an arbitration clause which forms part of a contract

shall be treated as an agreement independent of the other

terms of the contract; and

(b) a decision by the arbitral tribunal that the contract is

null and void shall not entail ipso jure the invalidity of the

arbitration clause.

(2) A plea that the arbitral tribunal does not have

jurisdiction shall be raised not later than the submission

of the statement of defence; however, a party shall not be

precluded from raising such a plea merely because that

he has appointed, or participated in the appointment of,

an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope

of its authority shall be raised as soon as the matter

alleged to be beyond the scope of its authority is raised

during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases

referred to in sub-section (2) or sub-section (3), admit a

later plea if it considers the delay justified.

(5) The arbitral tribunal shall decide on a plea referred to

in sub-section (2) or sub-section (3) and, where the

arbitral tribunal takes a decision rejecting the plea,

continue with the arbitral proceedings and make an

arbitral award.

(6) A party aggrieved by such an arbitral award may

make an application for setting aside such an arbitral

award in accordance with section 34.”

Page 29 of 31

25. In re Interplay (supra), this Court held as follows: -

“123. The doctrine of kompetenz-kompetenz (also known

as competence-competence), as originally developed in

Germany, was traditionally understood to imply that

arbitrators are empowered to make a final ruling on their

own jurisdiction, with no subsequent judicial review of the

decision by any court. [ Fouchard, Gaillard, Goldman on

International Commercial Arbitration, Emmanuel Gaillard

and John Savage (Eds.), (1999) 396.] However, many

jurisdictions allow an Arbitral Tribunal to render a decision

on its jurisdiction, subject to substantive judicial review.

[Gary Born, International Arbitration Law and Practice (3rd

Edn., 2021) 1143.]

124. It is a well-recognised principle of public

international law that a legal authority possessing

adjudicatory powers has the right to decide its own

jurisdiction. [Interpretation of the Greco-Turkish Agreement

of December 1st, 1926, In re, 1928 SCC OnLine PCIJ 5]

Similarly, it is a general rule of international arbitration law

that an Arbitral Tribunal has the power to determine its own

jurisdiction. The ability of an Arbitral Tribunal to determine

its own jurisdiction is an important facet of arbitration

jurisprudence because it gives effect to the separability

presumption. The separability presumption insulates the

arbitration agreement from the defects of the underlying

contract, and thereby ensures the sustenance of the

tribunal's jurisdiction over the substantive rights and

obligations of the parties under the underlying contract

even after such a contract is put to an end. The doctrine of

competence-competence allows the tribunal to decide on

all substantive issues arising out of the underlying contract,

including the existence and validity of the arbitration

agreement.”

Page 30 of 31

26. For the reasons set out hereinabove, paragraph 40 of

Central Warehousing (Supra) cannot be understood on the

facts of the present case to mean that Clause 33 of the Leave

and License Agreement has ceased to exist.

27. We have been constrained to deal with the judgement in

Central Warehousing (supra) only to decipher whether on

account of the said judgement, Clause 33 of the Leave and

License Agreement dated 06.10.2017, in the present case,

containing the arbitration clause is non-existent. We hold that

it is not and that an examination under Section 11(6-A)

indicates that there exists an arbitration agreement between

the parties. We are conscious that an appeal is pending in this

Court against the judgement in Central Warehousing (supra).

That appeal may be decided on its own merits and we are not

to be taken to have pronounced on the correctness of Central

Warehousing (supra) one way or the other.

Page 31 of 31

28. The appeal is dismissed for the reasons stated above. No

order as to costs. The Arbitrator shall proceed with the

adjudication of the disputes and conclude the proceedings

within 6 months from today.

…….........................J.

[J. B. PARDIWALA]

……….........................J.

[K. V. VISWANATHAN]

New Delhi;

5

th

January, 2026