{"id":156155,"date":"1970-01-01T00:00:00","date_gmt":"1969-12-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/section-106-the-kerala-land-vs-bharat-sanchar-nigam-limited"},"modified":"2017-07-15T04:34:09","modified_gmt":"2017-07-14T23:04:09","slug":"section-106-the-kerala-land-vs-bharat-sanchar-nigam-limited","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/section-106-the-kerala-land-vs-bharat-sanchar-nigam-limited","title":{"rendered":"Section 106 The Kerala Land … vs Bharat Sanchar Nigam Limited"},"content":{"rendered":"
Kerala High Court<\/div>\n
Section 106 The Kerala Land … vs Bharat Sanchar Nigam Limited<\/div>\n
       \n\n  \n\n  \n\n \n \n          Section 106 the Kerala Land Reforms Act?\n\n     3) When did the defendant came into possession of the\n          plaint schedule ?\n\n     4) Is the defendant liable to pay any amount to the\n          plaintiff as arrears of licence fee ? If so, what is the\n          amount or is the defendant defaulted in payment of\n          lease premium ?\n\n     5) Can the mandatory injunction prayed for be\n          allowed ?\n\n     6)     Reliefs and costs?\n\n     Additional Issues\n\n     7) Whether issue NO.2 is to be referred to the Land\n          Tribunal concerned under Section 125(3) of the KLR\n           Act ?\n\n     8) Whether the defendant is entitled to the benefit of\n          Section 60(b) of Easement Act ?\n\nRFA. N0. 90\/06\n                              -7-\n\n\n     6.     At trial, the oral evidence consisted of the\n\ntestimony of plaintiff as PW1 and that of the defendant as\n\nDW1 and that of a         witness - a surveyor as DW2. The\n\ndocumentary evidence on the side of the plaintiffs consisted\n\nof Exts.A1 to A12. Ext.A1 is copy of the settlement deed\n\nexecuted by late Bhaskara Pillai in favour of his children.\n\nExt.A2 is the settlement deed executed by Nagarajan Pillai\n\nin favour of his brother, the second plaintiff. Ext.A3 series\n\nare basic tax receipts in favour of plaintiffs 1 and 2. Ext.A4\n\nis produced as a deed of licence executed by the defendant\n\nin favour of Bhaskara Pillai. Strong exception is taken by\n\nthe defendant to Ext.A4 which according to him is a\n\nfraudulent document not executed by him. Ext.A5 is copy of\n\nthe notice dated 3-2-1994 terminating the licence. Ext.A6 is\n\nthe reply notice dated 11-02-1994. Ext.A7 is the copy of\n\nthe plaint in O.S.No.1181\/1978 which was a suit filed by the\n\ndefendant praying that injunction be issued against the\n\nRFA. N0. 90\/06\n                             -8-\n\n\nplaintiff from creating obstruction in the matter of\n\nconducting timber business.      Ext.A8 is the copy of the\n\njudgment in O.S.No. 1181\/78. Ext.A9 is copy of the decree\n\nin O.S.No. 1181\/78. Ext.A10 is the certificate issued by the\n\nUlloor Panchayath. Ext.A11 is copy of the plaint in O.S.No.\n\n1099\/94 of the Munsiff Court, Thiruvananthapuram, a suit\n\nfiled by the defendant, but later dismissed as withdrawn.\n\nExt.A12 is copy of the written statement in O.S.No.\n\n1181\/78. Ext.B1 is the lawyer notice dated 21-04-1980 by\n\nwhich late Bhaskara Pillai terminated the licence and\n\ndemanded vacant possession of the suit schedule property.\n\nExt.B2 is copy of the affidavit filed by the defendant along\n\nwith the petition to pass an order for returning Exts. A1 to\n\nA7 submitted before the court in O.S. No. 1181\/78. Ext.B3\n\n(a) is the plan prepared by DW3.       Ext.B4 is also a plan\n\nshowing the office building of the defendant. Ext.B5 is a\n\nnotice which is seen issued as a reply to Ext.B1 notice.  In\n\nRFA. N0. 90\/06\n                             -9-\n\n\nExt.B4 it is contended that the defendant is not liable to be\n\nevicted and that the defendant is in possession of the\n\nproperty prior to 2-6-1967 as a lessee. Ext.B5 is copy of\n\nthe Mahazar prepared in O.S. No. 1181\/81. Ext.B6 series\n\nwould go to show that the defendant was paying rent since\n\n20-6-1967.     Sketch of the property is also attached to\n\nExt.B6 file.   Ext.C1 is the report filed by the Advocate\n\nCommissioner Sri.S.N. Sarma.\n\n     7.     The learned Subordinate Judge considered issue\n\nNo.3 first.   It was found that the said issue is virtually\n\nanswered finally in Ext.A8 judgment in O.S.No. 1181\/78. It\n\nwas noticed that Ext.A4 lease deed relied on by the plaintiff\n\nto prove that the licence commenced on 30-09-1967 had\n\nbeen rejected in Ext.A8 suit and relying on the receipt which\n\nhad been marked in Ext.A8 suit as Ext.A5, the learned\n\nSubordinate Judge would answer the issue finding that the\n\ndefendant came into occupation of the property on 10-2-66.\n\nRFA. N0. 90\/06\n                            -10-\n\n\n     8. Issue Nos. 1, 2 and 7 were considered together by\n\nthe learned Subordinate Judge. On making a thorough\n\nanalysis     of the evidence   -  oral, documentary    and\n\ncircumstantial in the light of certain judicial precedents\n\nwhich were cited before him, the learned Subordinate Judge\n\nheld that the defendant failed to establish his claim as\n\nlessee and hence he is not entitled to the protection of\n\nSection 106 of the KLR Act.      Issue Nos. 1 and 7 were\n\nanswered against the defendant and it was found that he is\n\nonly a licensee upon the plaint schedule property and that\n\nthere is no necessity to refer Issue No. 2 to the Land\n\nTribunal concerned under Section 125(3) of the KLR Act.\n\nAdditional issue No. 8 regarding the eligibility of the\n\ndefendant to the benefit of Section 60(b) of the Easements\n\nAct was answered next by the learned Subordinate Judge.\n\nThis issue was also answered against the defendant by the\n\nlearned Subordinate Judge    after considering the ratio of\n\nRFA. N0. 90\/06\n                              -11-\n\n\nvarious judicial precedents cited before by the counsel and\n\nin the light of the evidence in the case.         Issue No.4\n\nregarding the plaintiff's entitlement for a decree for arrears\n\nof licence fee was answered against the plaintiff since it was\n\nfound that the amount was deposited pursuant to the\n\njudgment of the Supreme Court.          It was issue No. 5\n\nregarding limitation which was answered by the learned Sub\n\nJudge last. It was noticed by the learned Subordinate Judge\n\nthat the contention that the suit is barred by limitation does\n\nnot have any foundation in the written statement.\n\nNevertheless, the above contention was also considered on\n\nits merits and found against the defendant.\n\n      9.    Very extensive    submissions   were    addressed\n\nbefore me by Sri.S.V.Balakrishna Iyer, learned senior\n\ncounsel for the appellant and by Sri.C.Unnikrishnan learned\n\ncounsel for the respondents. With reference to the question\n\nwhether the defendant is a lessee        of the land forming\n\nRFA. N0. 90\/06\n                              -12-\n\n\nsubject      matter  of   the   plaint   schedule      property,\n\nSri.Balakrishna Iyer, learned senior counsel submitted that\n\nExt.A4 is the document on which the plaintiff placed much\n\nreliance. According to him, the very nature of the document\n\n\"                 \" (counter part of lease) is indicative of the\n\nreal relationship between the parties to the document. He\n\nsubmitted that the document shows that a right in\n\nimmovable property has been created. He pointed out that\n\nthe document recites that the defendant will have a right to\n\nput up saw mill. The document also says that it was for the\n\nsaid purpose that the property was put in possession of the\n\ndefendant on 2-6-1967 on a monthly rent of Rs. 125\/-. The\n\ndocument says         that pursuant to the entrustment,\n\npossession was taken and sheds were put up. Document\n\nalso recites that the same is being executed since Bhaskara\n\nPillai, the lessor, wanted documentary evidence regarding\n\nthe entrustment and its terms. Document also recites about\n\nRFA. N0. 90\/06\n                             -13-\n\n\nthe security deposit and clearly mentions that monthly rent\n\nwill be payable at the rate of 105\/- after setting off interest\n\ncalculated at the rate of 12% on the amount under deposit.\n\nSri.Balakrishna Iyer, learned senior counsel, submitted that\n\nthough the genuineness of Ext.A4 document is strongly\n\ndisputed by the defendant who contends that he has not\n\nsubscribed his signature to the same,      the terms of the\n\ntransaction between the parties is substantially as reflected\n\nin the document itself.   According to him, the most serious\n\ncontention of the defendant regarding Ext.A4 is that\n\ncontrary to the date 02-06-1967 mentioned in the\n\ndocument, the transactions started really on 10-02-1966\n\nand that a later date was mentioned in Ext.A4 with the sole\n\npurpose of defeating the defendant's eligibility for the\n\nbenefit of Section 106 of the KLR Act. The crucial date in\n\nthe context of Section 106, learned counsel pointed out is\n\n20-5-1967 and this explains why a subsequent date is\n\nRFA. N0. 90\/06\n                             -14-\n\n\nmentioned in Ext.A4. Sri.Balakrishna Iyer submitted that\n\nthe defendant had been consistently contending that a lease\n\nof the land was given to him on 10-02-1966. Ext.A7 plaint\n\nin O.S.No.1181\/78 and Ext.A8 and A9 judgment and decree\n\nin that suit was referred to by the learned senior counsel.\n\nSri.Balakrishna Iyer, learned senior counsel, submitted that\n\napart from specifically pleading that he is a lessee of the\n\nland since 10-02-1966 he had also relied on the receipt\n\ndated 10-02-1966 to support the contention that his\n\npossession commenced on that date.            Learned senior\n\ncounsel highlighted that in Ext.A12 written statement filed\n\nin that suit, the plea of the plaintiff that the property was\n\nleased out to the plaintiff on 10-02-1966 was not denied.\n\nLearned counsel would read over to me paragraph 3 of\n\nExt.A12 written statement.         Learned senior counsel\n\nsubmitted that though the frame of O.S.No. 1181\/78 which\n\nwas as a suit for injunction and adjudication of rights\n\nRFA. N0. 90\/06\n                             -15-\n\n\nclaimed by the present defendants under Section 106 of the\n\nKLR Act did not arise, the plaintiff herein being conscious of\n\nthe right claimed by the defendant herein had denied the\n\nexecution of receipt dated 10-02-1966 which was made\n\nmention of in paragraph 5 of Ext.A7 plaint and had also\n\ncontended that the date of the lease is incorrect. It was\n\nasserted that the \"lease\" executed on 2-6-1967 and the\n\ndocument which is produced as Ext.A4 in this case was\n\nproduced as Ext.B2 in Ext.A7 suit. According to the learned\n\ncounsel, the finding in Ext.A7 suit that Ext.A4 is not a\n\ngenuine document has been rightly accepted by the learned\n\nSub Judge in the impugned judgment.\n\n     10. The learned senior counsel submitted that the\n\ncontention of the present plaintiff in Ext.A12 written\n\nstatement regarding receipt dated 10-2-1966 issued by\n\nBhaskara Pillai was only a vague one, including the\n\ncontention that the original is not produced and it is only a\n\nRFA. N0. 90\/06\n                             -16-\n\n\nphotocopy which is produced.        Learned senior counsel\n\nsubmitted that it is an undeniable fact that the receipt dated\n\n10-2-1966 was produced and marked as Ext.A5.              The\n\ndocument must have been marked through PW1 in that suit\n\nwho is the present defendant. Sri.Bhaskara Pillai, the father\n\nof the plaintiffs himself was examined as DW1 in that suit\n\nand according to him, a reading of Ext.A8 judgment will\n\nshow that no objection was raised at the time of hearing\n\nregarding the admissibility or evidentiary value of the\n\ndocument which was marked as Ext.A5. Ext.B2 application\n\nsubmitted by the present defendant for getting back the\n\ndocuments produced in O.S.No. 1181\/1978 including Ext.A5\n\nwithout success is also relied on by the learned senior\n\ncounsel to submit that original of Ext.A5 was before the\n\ncourt which delivered Ext.A8 judgment. According to the\n\nlearned senior counsel, the present plaintiffs cannot contend\n\nthat what was marked as Ext.A5 in O.S.No.1181\/1978 was a\n\nRFA. N0. 90\/06\n                            -17-\n\n\nphotocopy or that even assuming that it was a photocopy\n\nwhich was marked as secondary evidence, the same could\n\nnot have been relied on in that suit. Objections as to the\n\nadmissibility of a document according to the learned counsel\n\nare to be raised at the appropriate stage and if objections\n\nare not raised, such objections will be taken to have been\n\nwaived. For this proposition, the learned counsel relied on\n\nthe judgment of this court in        Anandan Nambiar v.\n\nRajalakshmi ( 1988 (1) KLT 536) and that of the Supreme\n\nCourt in R.V.E. Venkitachala Gounder v. Arulmigu\n\nVisweswaraswami & V.P.Temple and<\/a> another ( 2003(8)\n\nS.C.C. 752) and also in Dayamathi Bai v. K.M.Shaffi<\/a> ( AIR\n\n2004 S.C. 4082). The said receipt dated        10-02-1966 is\n\npart of the record in the present suit as oral evidence of\n\nPW1 and according to the learned senior counsel, objections\n\nraised regarding its admissibility is to be overruled and the\n\nsame is to be treated as part of the record.             The\n\nRFA. N0. 90\/06\n                              -18-\n\n\nadmissibility of the receipt dated     10-02-1966 will have\n\nto be decided by this court and the court below merely says\n\nthat the document is not before the court, so submitted\n\nlearned senior counsel. Learned senior counsel requested\n\nthat the agreement dated 10-02-1966 may be relied on and\n\nit may be held that the jural relationship between the\n\nparties is that of lessor and lessee. Learned senior counsel\n\nsubmitted that having come to the court seeking reliefs\n\nrelying on Ext.A4 the plaintiff cannot disown the evidentiary\n\nvalue of Ext.A4. Even going by the terms of Ext.A4 grant of\n\nan interest in immovable property is spelt out.      Learned\n\nsenior counsel submitted that it is found in Ext.A8 judgment\n\nthat the defendant is in possession and enjoyment of the\n\nproperty as a lessee though it is also found that the said\n\ninterest of the defendant does not take within its fold the\n\nright to pluck nuts from the coconut trees.\n\n     11. The learned senior counsel submitted that a\n\nRFA. N0. 90\/06\n                              -19-\n\n\nreading of Ext.A12 written statement and Ext.A8 judgment\n\nin O.S.1181 of 1978 will show that the plaintiffs and their\n\npredecessors had no case that the present defendant was\n\nholding the property as a licensee.      He submitted that a\n\ncase of licence is put forward for the first time only after\n\nExt.P8 judgment and through Ext.B1 notice.          To Ext.B1,\n\nExt.B4 reply was given reiterating that the defendant is a\n\nlessee of the land entitled to protection of section 106 of the\n\nKerala Land Reforms Act. Counsel argued that a reading of\n\nExt.A4 will show that the intention of the parties was to\n\ncreate an interest in land in favour of the present defendant\n\nfor the purpose of conduct of his trade. Referring to the\n\njudgment of the Supreme Court in         Associated Hotels of\n\nIndia v. R.N.Kapoor, AIR<\/a> 1959 SC 1262 and the judgment of\n\nthis Court in Chandy Varghese v. Abdul Khader,<\/a> (2003)3\n\nKLT 553), the learned senior counsel submitted that the\n\nintention of the parties as gatherable from the documentary\n\nRFA. N0. 90\/06\n                             -20-\n\n\nevidence including Ext.A4was to create an interest in\n\nimmovable property. According to him the clause inExt.A4\n\nthat on termination of the rental arrangement, the present\n\ndefendant will remove the constructions will not detract\n\nfrom the grant of an interest. That clause is only by way of\n\nabundant caution and recognizes the right of the lessee\n\nunder section 108(h) and his liability under section 108(m)\n\nof the T.P. Act. This clause helps the lessor only to the\n\nextent of exonerating him from the liability to pay any\n\ncompensation to the lessee in the event of termination of\n\nthe lease for the improvements effected by the lessee.\n\nReferring to Ext.Ext.B6 series the learned counsel submitted\n\nthat these documents will strongly indicate that the\n\ndefendant was paying rent. B6(e) receipt dated 2-7-1967,\n\naccording to him, probabilises that an amount of Rs.1000-\n\nout the deposit of Rs.2000\/- had been paid in the first\n\ninstance.     Ext.A4 would have been concocted by the\n\nRFA. N0. 90\/06\n                               -21-\n\n\nplaintiffs being quite oblivious of Ext.B6(e) receipt dated 2-\n\n6-1967 for Rs.150\/-.      This rent receipts at any rate, the\n\nlearned counsel submitted, will prove that the defendant is a\n\nlessee of the land. Referring to the judgment of this Court\n\nin Abdul Rahiman v. Iype, 1965 KLT 247 and of the\n\nSupreme Court in Chandy Varghese v. Abdul Khader,<\/a> (2003)\n\n3 KLT 553) and the judgment of this Court in Kochunni v.\n\nKuriakose,<\/a> (1981KLT 338) Mr.Balakrishna Iyer submitted\n\nthat the defendant is a protected lessee under section 106\n\nof the KLR Act.       For this argument, the learned senior\n\ncounsel relied on Ext.A4 document. According to him, since\n\nthe plaintiff is relying on Ext.A4 it cannot be disputed that\n\nas on the date of Ext.A4 there had been construction of\n\nshed or sheds on the land. The time of construction of the\n\nsheds could have been any day between 2-6-1967 and 30-\n\n9-1967.      Ext.A10 certificate issued by the local authority\n\ncannot be pressed into service to argue that the sheds could\n\nRFA. N0. 90\/06\n                             -22-\n\n\nhave been constructed only after 5-10-1968, the date of\n\nalleged remittance of fee for issue of permit to put up shed.\n\nCounsel pointed out that Ext.A4 dated 2-6-2007 is only 13\n\ndays from the appointed day - 20-5-1967, the relevancy of\n\nthe   amendment     to   Ext.A12   written  statement,    the\n\nemergence of Ext.A4 document contemporaneously with the\n\nsaid amendment, failure to prove due execution of Ext.A4\n\n(both in the previous suit O.S. No.1181 of 1978 and in the\n\npresent suit) marking of the agreement receipt dated 10-12-\n\n1966 as Ext.A5 in O.S. No. 1181 of 1978 and its proof in\n\nO.S. No.1181 of 1978 become all the more important.\n\nExt.B6(e) receipt dated 2-7-1967 evidencing payment of\n\nRs.115\/- as rent for the month of June 1967 also would very\n\nmuch probabilise that out of the rent of Rs.112\/- per month,\n\nRs.10\/- alone was deducted for the month of June 1967.\n\nThis in turn probabilises that the defendant was inducted\n\ninto possession on 10-2-1966 after receiving Rs.1000\/- as\n\nRFA. N0. 90\/06\n                             -23-\n\n\ndeposit under the agreement dated 10-2-1966. According\n\nto the learned senior counsel in the light of all these\n\nevidence very little evidence alone is required to find that\n\nthe construction of the shed was prior to 20-5-1967. The\n\nperiod from 10-2-1966 to 20-5-1967 is a long period of 15\n\nmonths and it cannot be easily accepted that during that\n\nlong period of 15 months a lessee did not put up any\n\nstructure or shed at least to protect himself, his manual\n\nlabourers and overseers and customers from the vicissitudes\n\nof climatic conditions.  The oral evidence of the defendant\n\nin this context was quite convincing and according to the\n\nlearned counsel the evidence in this case including\n\ncircumstantial evidence is sufficient to hold that the\n\ndefendant is entitled to the protection of section 106 of the\n\nKLR Act.      The legislative objectives of the provisions\n\ncontained in Section 106 of the KLR Act is to protect the\n\nlessees who had come into possession prior to 20-5-1967\n\nRFA. N0. 90\/06\n                             -24-\n\n\nshould not be lost sight of      by this court, submitted\n\nMr.Balakrishna Iyer. Receipt dated 10-2-1966 marked as\n\nExt.A5 stands proved. Thus lease of land prior to 29-5-1967\n\nstands proved. Having regard to the nature of the purpose\n\nfor which the lease was granted, common course of natural\n\nevents and human conduct and the recital in Ext.A4\n\nregarding construction of the shed, the construction should\n\nhave been immediately after 10-2-1966 and at any rate,\n\nmuch prior to 20-5-1967.          Counsel argued that a\n\npresumption under section 114 of the Evidence Act can be\n\ndrawn in favour of the defendant. According to the learned\n\ncounsel, in as much as section 106 is intended to uplift the\n\nweaker sections of the society who have expended money\n\nand constructed buildings for commercial or industrial\n\npurpose and to promote commerce and industry, the court\n\nmay lean in favour of protecting their interests if two views\n\nare possible on proven facts. According to the learned senior\n\nRFA. N0. 90\/06\n                              -25-\n\n\ncounsel, there is every justification for holding that the\n\ndefendant is entitled to the protection of section 106 of the\n\nKLR Act.\n\n     12. Alternatively the learned senior counsel argued that\n\neven assuming that the defendant is not a protected lessee\n\nhe will not be liable to be evicted without a proper notice\n\nunder section 106 of the T.P. Act. According to him, in the\n\nlight of the provisions contained in section 106 of the T.P.\n\nAct, the lease which was for commercial or industrial\n\npurpose, could have been terminated only with 6 months'\n\nnotice.     Ext.B1 does not amount to termination of lease\n\nsince B1 purports to terminate only the licence.       Ext.A5\n\nnotice dated 3-2-1994 also purports to terminate the\n\ntransaction (calling it 'licence') with effect from 2-3-1994.\n\nEven A5 cannot have the effect of terminating the lease.\n\nMy attention was drawn by the learned senior counsel to\n\nSection 106 as amended by the T.P. Amendment Act (3 of\n\nRFA. N0. 90\/06\n                              -26-\n\n\n2003).     Senior counsel referred also to Section 3 of the\n\nTransfer of Property (Amendment) Act 2002 dealing with\n\ntransitory provision.     According to the learned senior\n\ncounsel it is the amended provision of section 106 which\n\napplies to the present suit. The amended provision came\n\ninto effect on 30-12-2002 and it was argued that by virtue\n\nof the transitory provision contained in section 3 (a) that the\n\nnotice is bad under the amended section 106(1) since the\n\nnotice does not give 6 months' notice and the suit is not\n\nfiled beyond the period of 6 months from the date of notice.\n\nCounsel submitted that the fact that arrears of rent was\n\ndeposited     in court and withdrawn will not amount to an\n\nassent to the continuance of the lessee after termination of\n\nthe lease so as to call the defendant a lessee by holding\n\nover as contemplated by section 116 of the T.P. Act.\n\nAccording to him, there was no determination of the lease\n\nas indicated in section 116 and determination has to be by\n\nRFA. N0. 90\/06\n                             -27-\n\n\none or more of the modes contemplated by section 111 of\n\nthe T.P. Act. Lease continues despite Ext.A5 notice which is\n\nan incompetent notice. Mr. Balakrishna Iyer relied on the\n\njudgment of the Supreme Court in Bhawanji v. Himatlal (AIR<\/a>\n\n1972 SC 819), in    Kewal Chand Mimani v. S.K.Sen and\n\nothers (2001) 6 SCC 512) and in Shanti Prasad Devi v.\n\nShankar Mahto (AIR<\/a> 2005 SC 2905).\n\n     13. Learned counsel then argued that even assuming\n\nthat the defendant is not a lessee at all, but a licensee as\n\ncontended by the plaintiff, the suit for mandatory injunction\n\nis not maintainable and is barred by the law of limitation.\n\nThe learned senior counsel referred to the judgment of the\n\nSupreme Court in Sant Lal Jain v. Avtar Singh (AIR<\/a> 1985\n\nSC 857) and submitted that suits will not be dismissed for\n\nthe technical reason of the manner in which the relief is\n\ncouched and court fee paid, if the suit is filed with\n\npromptitude without any unreasonable delay. Referring to\n\nRFA. N0. 90\/06\n                              -28-\n\n\nthe judgment of the Supreme Court in Joseph Severance v.\n\nBenny Mathew,<\/a> (2005(4) KLT 290) the learned senior\n\ncounsel submitted that suit on title and suit for mandatory\n\ninjunction are governed for the purpose of limitation by\n\nArticles 65 and 113 respectively of the Limitation Act and\n\nthat if the suit is for mandatory injunction the licensor has\n\nto file the suit with promptitude failing which the suit will be\n\ndismissed as not maintainable. Mr. Balakrishna Iyer relied\n\nalso on the judgments of this court in Rajappan v.\n\nVeerraghava Iyer, (1969 KLT 811), in Aspinwall & Co. Ltd.\n\nv. Soudamini Amma, (1974 KLT 681) and in George v. John<\/a>\n\n(1984 KLT 179) for this proposition. According to him, in a\n\ngiven case for mandatory injunction the suit filed within the\n\nouter time limit of 3 years the court can justifiably dismiss\n\nthe suit as not maintainable if it is seen that the plaintiff did\n\nnot approach the court with promptitude.          The learned\n\nCounsel relied on the judgment of a learned single Judge in\n\nRFA. N0. 90\/06\n                            -29-\n\n\nParamu v. Balan (2001(3) KLT 803) in this connection. The\n\ncounsel submitted that B1 is dated 21-4-1980. According to\n\nthe counsel, there is admission of PW-1 that his father\n\ndemanded back possession in 1978. The suit is filed only on\n\n30-3-1984. The cause of action for the suit in any event\n\nhad occurred when B1 was sent. Through B4 the alleged\n\nstatus as licensee was repudiated. Senior counsel pointed\n\nout that the present plaintiffs cannot feign ignorance\n\nregarding     the nature  of  contentions   raised  by the\n\ndefendants,     since they were eo nomine parties in O.S.\n\nNo.1185 which led to A8 and A9 judgment and decree. A\n\nsuit for mandatory injunction filed in 1994 against the\n\ndefendant who to the knowledge of the plaintiff had\n\nasserted possession in 1978 cannot be maintainable. The\n\nlearned senior counsel submitted that in any event the suit\n\nfor mandatory injunction is time barred.       Right to sue\n\naccrues when there is occurrence of the right asserted in the\n\nRFA. N0. 90\/06\n                             -30-\n\n\nsuit and unequivocal threat by the other party to infringe\n\nthe same. Cause of action arises only once and by sending\n\nrepeated      notices the plaintiffs cannot   postpone   the\n\noccurrence of the cause of action.      For this proposition\n\nMr.Balakrishna Iyer relied on various authorities including\n\nthe judgment of the Privy Council in MT. Bolo v. Mt. Koklan\n\n& others, (AIR 1930 P.C. 270), in Annamalai Chettiar v.\n\nMuthukaruppan, (AIR 1931 P.C. 9) the judgment of the\n\nSupreme Court in      Gannon Dunkerley & Co. v. Union of\n\nIndia (AIR<\/a> 1970 SC 1433) and in Mohammed Yunus v. Syed\n\nUnnissa (AIR<\/a> 1961 SC 808) and the judgment of this Court\n\nin Premier Cable Co. Ltd. v. Govt.of Inida,<\/a> 1990(2) KLT\n\n477.     Counsel submitted that while interpreting the law\n\nrelating to limitation, equitable considerations are out of\n\nplace and for this proposition strong reliance was placed by\n\nthe learned counsel on the judgment of the Supreme Court\n\nin P.K.Ramamchandran v. State of Kerala (1997)7 SCC 556.\n\nRFA. N0. 90\/06\n                              -31-\n\n\nCounsel submitted that issue No.5 takes in the plea of\n\nlimitation and on true facts question of limitation can be\n\ngone into by this court. The suit instituted for mandatory\n\ninjunction based on the plaintiffs' plea that the defendant\n\nwas a licensee is liable to be held as not maintainable and is\n\nalso barred by limitation.\n\n     14. Mr. Balakrishna Iyer would lastly argued that if at\n\nall the earlier contentions failed and it is found that the\n\ndefendant is a mere licensee, then it has to be found that he\n\nis entitled to the benefit of section 60(b) of the Indian\n\nEasements Act.     He submitted that paragraph 9A to the\n\nwritten statement is added by way of amendment, as\n\npermitted by the Supreme Court.         On the plea of the\n\nplaintiffs the defendant is entitled to succeed, since\n\nadmittedly acting on the transaction evidenced by Ext.A4\n\nwhich according to the plaintiff     is the transaction of a\n\nlicence, the defendant had put up constructions.        These\n\nRFA. N0. 90\/06\n                             -32-\n\n\nconstructions, according to the defendant, are permanent in\n\nnature.      The learned senior counsel submitted that the\n\nquestion whether the transaction is lease or a licence or\n\nwhether a person is lessee or licensee is not aways easy to\n\ndecide. According to him, denial or grant of benefit under\n\nsection 60(b) of the Easements Act cannot therefore rest on\n\nthe mental element of the person making the permanent\n\nconstructions. He referred to the judgment of the Supreme\n\nCourt in Sankar v. Gangabai (1976 SC 2506) and submitted\n\nthat the Supreme Court would uphold the alternative plea of\n\nsection 60(b) raised before that court for the first time, after\n\nthe appellant therein got worsted in the other pleas taken\n\nup before the courts below. It is the conduct of the licensor\n\nwhich has been given emphasis by the Supreme Court\n\nrather than the mental element of the person putting up the\n\nconstructions, according to Mr.Balakrishna Iyer and in this\n\nregard he relied on the judgment of the Supreme Court in\n\nRFA. N0. 90\/06\n                              -33-\n\n\nRam Sarup Gupta v. Bishun Narain Inter College,<\/a> (1987)2\n\nSCC 555). The person who put up the construction may or\n\nmay not believe himself to be the licensee. That is beside\n\nthe point. According to him, in the light of the judgment of\n\nthe Supreme Court in Ram Sarup Gupta's case, the one\n\nproposition laid down in AIR 1976 SC 2506 followed by this\n\ncourt in Geetha Varma v. Amminikutty,<\/a> (1995(1) KLT 525 is\n\nnot good law and need not be followed. Counsel submitted\n\nthat a mere statement in Ext.A4 that the licensee will\n\nremove the constructions at the time of vacating the land\n\nwill not amount to contract to the contrary for the purpose\n\nof section 60(b). Contract to the contrary envisaged is that\n\nthere must be recital in the deed of licence to the effect that\n\nif acting on the licence, constructions are put up, the same\n\nwill not result in the licence being rendered as irrevocable.\n\nAccording to Mr.Balakrishna Iyer, the structures in question\n\nas evident from the commission reports are structures of a\n\nRFA. N0. 90\/06\n                              -34-\n\n\npermanent nature. In this regard the learned senior counsel\n\nrelied on the judgment in Thakur Prasad v. Thomkinson,\n\n(AIR 1927 Oudh 206) wherein a building of mud walls and\n\nthatched roof was held to be of permanent nature, entitling\n\nprotection under section 60(b) of the Easements Act.     Mr.\n\nBalakrishna Iyer concluded by submitting that failing of the\n\nother contentions it has to be found that the appellant is\n\nentitled for the protection of section 60(b) of the Easements\n\nAct.\n\n     15.     Sri Unnikrishnan,    learned  counsel   for the\n\nrespondent would oppose all the submissions of Sri\n\nS.V.Balakrishna Iyer. He would support the judgments of\n\nthe learned Subordinate Judge not only by the reasons\n\nstated in that judgment, but also on various other reasons\n\non the basis of several judicial precedents which were cited\n\nby him. According to him the first question to be decided in\n\nthe case was whether the transaction between the parties\n\nRFA. N0. 90\/06\n                             -35-\n\n\nwas a lease or a licence. According to Mr. Unnikrishnan it\n\nhad to be answered that the transaction is a licence only.\n\nLearned counsel submitted that in Ext.A8 judgment it had\n\nbeen conclusively and categorically found that the defendant\n\nis not in possession and enjoyment of the property.\n\nPossession and enjoyment of the property was an essential\n\npre-requisite for the creation of lease, referring to sec.105\n\nof the T.P. Act it was argued by the learned counsel.\n\nCounsel referred to certain passages of the cross-\n\nexamination of PW.1 and submitted that there was clear and\n\ncategorical admission by the defendant himself that it is the\n\nplaintiffs who are in enjoyment of the property in respect of\n\nthe usufructus, even after the defendant came to occupy the\n\nproperty for carrying on timber business. Counsel relied on\n\nthe judgment of this Court in Paranchu Ouseph v. Pakku\n\nKunjathu - 1951 KLT 44 (DB) and submitted that\n\n\"possession\" as used in the TP Act is distinct from\n\nRFA. N0. 90\/06\n                             -36-\n\n\n\"enjoyment\" and does not necessarily take in \"enjoyment\".\n\nCounsel submitted that in leases, usufructus i.e. fruits of the\n\nfruit bearing trees belong    to the lessee and not to the\n\nlessor.     Mr. Unnikrishnan relied on the judgment of the\n\nSupreme Court in Associated Hotels India Ltd. v. R.M.\n\nKapoor and<\/a> it was submitted on the basis of paragraph 27 of\n\nthe said judgment that if a documents gives only a right to\n\nuse the property in a particular way or under certain terms\n\nwhile it remains in possession and control of the owner\n\nthereof, the arrangement will be only a licence.      Counsel\n\nsubmitted that there is clear distinction between the concept\n\nof licence and lease.    The dividing line according to him is\n\nclear that though he submitted that sometimes it becomes\n\nvery thin or even blurred. Counsel referred to the judgment\n\nof Lord Denning in Errington v. Errington (1952 - 1 ALL.\n\nE.R. 149) in this context.    Learned counsel relied also on\n\nthe judgment of this Court in Qudrat Ullah v. Muncipal\n\nRFA. N0. 90\/06\n                            -37-\n\n\nBoard, Bareli - 1974 (1) SCC 202, the judgment of this\n\nCourt in Parameswaran Pillai v. Gopinathan Nair<\/a> - 1975 KLT\n\n64, the judgment in Ulahannan v. George - 1988 (1) KLT\n\n335, the judgment of the Supreme Court in Corporation of\n\nCalicut v. K.   Sreenivasan<\/a> - 2002 (5) SCC 361 and       in\n\nC.M.Beena and another v. P.N.Ramachandra Rao - 2004 (3)\n\nSCC 595 to argue that unless there is exclusive possession\n\nof the property by the defendant coupled with a right to\n\nenjoy the property, there will not be any lease of the\n\nproperty in favour of the defendant.   Ext.A8 has become\n\nfinal and binding on the parties. Mr. Unnikrishnan referred\n\nto sec.107 of the TP Act which mandates that lease of\n\nimmovable property from year to year or for any term\n\nexceeding one year or reserving an early rent can be made\n\nonly by a registered instrument.  Counsel pointed out that\n\nExts.A4 and B2 which are documents produced by the\n\nparties are not both registered documents or documents\n\nRFA. N0. 90\/06\n                              -38-\n\n\nexecuted by both parties together.          According to the\n\nlearned counsel it is therefore clear that no lease is created\n\nfrom year to year or for a period exceeding one year or in\n\nperpetuity.\n\n     16. The relationship between the parties is only that of\n\na licensor and a licensee. Learned counsel would then dealt\n\nwith the question whether the appellant is entitled to the\n\nbenefit of sec.106 of the KLR Act. According to the learned\n\ncounsel this question will arise seriously for consideration\n\nonly if this court finds that the relationship between the\n\nparties is that of a lessor and a lessee.   According to him\n\neven if this court finds that the arrangement between the\n\nparties is a lease, then also the appellant will not be entitled\n\nfor the benefit of sec.106 of the KLR Act.       He submitted\n\nthat in order that a party gets the protection of sec.106,\n\nboth the lease of the land and the construction of building\n\nmust have been prior to 20.5.1967.          Learned counsel\n\nRFA. N0. 90\/06\n                               -39-\n\n\nsubmitted that the appellant has not specifically contended\n\nin his written statement or in Ext.A6 reply notice, in Ext.A7\n\nplaint in OS 1181\/1978, in Ext.A11 plaint in OS 2905\/1992\n\nor in Ext.B4 reply notice as to the actual date of\n\nconstruction of the building.       According to the counsel\n\nExt.A10 certificate dated 3.12.1979 issued by the Panchayat\n\nclearly proves that the Panchayat has issued licence for the\n\nstocking and selling of timber on 20.2.1968, for erecting\n\nmachinery on 14.2.1968 and for shed No.UP 4\/86 dated\n\n5.10.1968,     If Ext.A4 is accepted, it will have to be found\n\nthat the construction of the shed is after 2.6.1967, if Ext.A4\n\nis rejected, the only available documentary evidence is\n\nExt.A10. As regards Ext.B2 dated 10.2.1966, learned\n\ncounsel argued that Ext.B2 is a concocted document.        The\n\nplaintiff had taken the very same contention in OS\n\n1181\/1978. Counsel referred to Ext.A12 written statement\n\nin OS 1181\/1978.         Counsel submitted that in Ext.A8\n\nRFA. N0. 90\/06\n                            -40-\n\n\njudgment it was held that Ext.A5 therein (Ext.B2) does not\n\nin any way advance the case of the plaintiff. According to\n\nthe learned counsel the conclusion in the impugned\n\njudgment that the defendant came into possession of the\n\nproperty on 10.2.1966 is wrong.    Counsel pointed out that\n\nto arrive at that conclusion the learned Subordinate Judge\n\nhas observed that in Ext.A8 judgment the Munsiff's Court\n\nhad discussed the issue of possession of the property and it\n\nwas found that as on 10.2.1966 the defendant was in\n\npossession of the property. Reading over to me Ext.A8, Mr.\n\nUnnikrishnan argued that no issue had been raised in Ext.A8\n\nas regards the date of the entry of the defendant to the\n\nproperty and counsel would assail the finding of the learned\n\nSubordinate Judge invoking the provisions of Rule 33 of\n\nOrder 41 CPC. Mr. Unnikrishnan submitted that Ext.A4 was\n\na genuine document and pointed out that even the appellant\n\nis relying on Ext.A4 to a considerable extent.     It is not\n\nRFA. N0. 90\/06\n                             -41-\n\n\ncorrect to say that the lower court has found Ext.A4 to be a\n\nbogus document. Ext.A4 was not taken into consideration\n\nfor the reason that the same was not proved in OS\n\n1181\/1978.      According to the learned counsel, the other\n\ndocuments in the case and the oral evidence will show that\n\nthe appellant came into possession only on 2.6.1967. The\n\nearliest rent receipt produced is receipt for the month of\n\nJune,1967.      According to Mr. Unnikrishnan from that\n\ndocument it can be easily concluded that on 2.6.1967 the\n\ndefendant came into possession of the property for timber\n\nbusiness and on completion of one month exactly,\n\ndefendant\/appellant paid the rent on 2.7.1967 and obtained\n\nthe receipt.\n\n     17.      Coming   to   the   question   whether    the\n\ndefendant\/appellant is entitled to the benefit of sec.60B of\n\nthe Easements Act, learned counsel placed strong reliance\n\non the judgment of a Division Bench of this Court in Geetha\n\nRFA. N0. 90\/06\n                            -42-\n\n\nVarma v. Amminikutty - 1995 (1) KLT 525.             Counsel\n\nsubmitted that all through the litigation the defendant\n\nmaintained that he is a lessee.   Therefore it is abundantly\n\nclear that constructions of permanent or temporary nature\n\nwere put up by him on the plaint schedule land with the\n\nstate of mind of a lessee and not that of a licensee.\n\nAccording to him Ext.A4 contains a contract to the contrary\n\nas envisaged by sec.60(b) and even in Ext.A8 judgment it is\n\nstated that PW1 has admitted the terms and conditions\n\nincorporated in Ext.B2 (Ext.A4) though Ext.A4 has not been\n\nrelied on by the learned Sub Judge in this case for the\n\nreason that Ext.A4 has not been proved.         The learned\n\ncounsel relied on the statement of the defendant in cross-\n\nexamination that there was a contract between the parties\n\nto surrender the premises.\n\n     18. Mr. Unnikrishnan would then answer the argument\n\nof Mr. Balakrishna Iyer that the suit is barred by limitation.\n\nRFA. N0. 90\/06\n                              -43-\n\n\nAccording to the learned counsel there is no plea in the\n\nwritten statement that a suit for mandatory injunction is\n\nbarred by limitation.   Relying on the judgment of this court\n\nin Musaliarakath Abdulla v. Abdul Azeea Naha<\/a> - 2006(2)\n\nKLT 228, Mr. Unnikrishnan submitted that the question of\n\nlimitation is a pure question of law only if it arises out of\n\nadmitted facts. In the instant case where the suit is not\n\nbarred by limitation, going by plaint averments defendants\n\nwill have to deny the averments and plead that the suit is\n\nbarred by limitation. In support of his argument that the\n\nquestion of limitation can be mixed question of fact and law,\n\nMr. Unnikrishnan relied on the judgment of the Supreme\n\nCourt in Narne      Rama Murthy v. Ravulla Somasundaram<\/a> -\n\n2005 (6) SCC 614.           According to Mr.Unnirkrishnan\n\npermitting the appellant to take up a plea before this court\n\nthat the suit is barred by limitation will result in serious\n\nprejudice to the respondent. Had such a plea been raised in\n\nRFA. N0. 90\/06\n                             -44-\n\n\nthe written statement, the plaintiff could have shown that\n\nignoring Ext.B1 issued by their father, the jural relationship\n\nbetween the parties was allowed to continue till the issuance\n\nof Ext.A5 notice. Counsel pointed out that even in Ext.A6\n\nreply notice the defendant       admitted the relationship\n\nbetween the parties and offered to pay the rent. Counsel\n\nrelied on the judgment of this court in Eapen Panicker v.\n\nKrishna Panicker<\/a> - 1970 KLT 42 and also on the recent\n\njudgment of the Supreme Court in P.T. Munichikkanna\n\nReddy and others v. Revamma and others<\/a> - 2007(6) SCC 59\n\nto argue that when two views are possible, court must lean\n\nagainst limitation and that since right of property has been\n\nrecognized as a human right, courts around the world has\n\nbeen taking unkind view towards statutes of limitation\n\noverriding property rights.\n\n     19. Mr. Unnirkrishnan would lastly argue that the\n\npresent suit for mandatory injunction and not for recovery of\n\nRFA. N0. 90\/06\n                             -45-\n\n\npossession is very much maintainable.       According to him\n\ncontrary argument is raised for the first time in this appeal.\n\nCounsel relied on the judgment of the Supreme Court in\n\nJoseph Severance v. Benny Mathew<\/a> - 2005 (4) KLT 290 and\n\nthat of the Supreme Court in Sant Lal Jain v. Avtar Singh<\/a> -\n\nAIR 1985 SC 857 and submitted that the relief is not to be\n\ndenied for the reason that the prayer in the plaint had not\n\nbeen couched in proper words.\n\n     20. I have anxiously considered the rival submissions\n\naddressed at the Bar in the light of the pleadings, evidence\n\nand ratio emerging from the decisions cited by the counsel\n\non either sides. The first question to be considered is as to\n\nwhat is the nature of the transaction between the parties in\n\nrespect of the suit schedule property, whether a lease or\n\nlicence? Lease of immovable property is denied as transfer\n\nof a right to enjoy the property in consideration of a price\n\npaid or promised to the transferor by the transferee who\n\nRFA. N0. 90\/06\n                             -46-\n\n\naccepts the transfer on such terms (see section 105 of T.P.\n\nAct). Ext.A8 judgment in O.S. 1181 of 1978 of the Munsiff's\n\nCourt, Thiruvananthapuram is a judgment inter partes. The\n\nsaid judgment has become final. It is certainly held in that\n\njudgment the possession of the property by the defendant is\n\nlimited to the user of the premises for doing his timber\n\nbusiness on a rental basis under Kumara Pillai (sic) who is in\n\nenjoyment of the trees standing in the plaint schedule\n\nproperty and the defendant has no right of enjoyment of\n\nthe plaint schedule property except to the extent of user of\n\nthe property for conduct of timber business. The appellant\n\nin cross-examination as DW1 has deposed as follows:\n\n\n\n\n(fees is being paid to Bhaskara Pillai. Bhaskara Pillai owns\n\none acre in total. I was permitted to stack timber in 50\n\nRFA. N0. 90\/06\n                               -47-\n\n\ncents out of the same).       Later at page 9 of the cross-\n\nexamination he would state as follows:\n\n\n\n\n(I have stated that the land has been given tome for the\n\nconduct of trade in timber and also to saw timber to slices.)\n\nAgain at page 5 of cross-examination DW1 would state as\n\nfollows:\n\n\n\n\n( After Ext.A8 it is the plaintiffs who are taking usufructs. I\n\nhave never obstructed the same). Thus DW1 has admitted\n\nwithout much ambiguity that the plaintiffs are in enjoyment\n\nof the property in respect of usufructs- that it is the\n\nplaintiffs who are taking income from the fruit bearing trees\n\nwhich are standing on the property even after the defendant\n\ncame to occupy the property and that the defendant was not\n\nin exclusive possession of the property. A Division Bench of\n\nRFA. N0. 90\/06\n                             -48-\n\n\nthis Court in Pranchu Ouseph v. Pakku Kunjathu (1951 KLT\n\n44) has explained the term \"enjoy\" and its distinctions from\n\nthe word \"possess\".    Their Lordships have held that \"the\n\nword \"enjoy\" is not used as the equivalent of \"possess\".\n\nThe connotation of the words \"possession\" as used in the\n\nAct is distinct from \"enjoyment\" and does not necessarily\n\ninclude enjoyment.    Under a lease, the usufructs of the\n\nproperty belong to the lessee. The transfer of a bare right of\n\npossession without the right of collecting usufructs is not a\n\nlease. The word \"enjoy\" seems to be used in the sense of\n\nthe beneficial occupation of property.     There must be a\n\ntransfer of the exclusive right of possession of the leased\n\nproperty in order to constitute a lease\". The Supreme Court\n\nin Associated Hotels of India Ltd. v. R.N.Kapoor (AIR<\/a> 1959\n\nSC 1262) coined the following propositions in the context of\n\nthe distinction between lease and licence:\n\n     1) To ascertain whether a document creates a license\n\nRFA. N0. 90\/06\n                                -49-\n\n\n         or lease, the substance of the document must be\n\n         preferred to the form.\n\n     2) The real test is the intention of the parties - whether\n\n         they intended to create a lease or license.\n\n     3) If the document creates an interest in the property,\n\n         it is a lease; but if it only permits another to make\n\n         use of the property, of which the legal position\n\n         continues with the owner, it is license.\n\n     4) If under the document the party get exclusive\n\n         possession of the property, prima facie, he is\n\n         considered to be a tenant, but circumstances may be\n\n         established which negative the intention to create a\n\n         lease.\n\nIt is clarified in paragraph 27 of the judgment that as per\n\nsection 52 of the Easements Act if a document gives only a\n\nright to use the property in a particular way or under certain\n\nterms while it remains in possession and control         of the\n\nRFA. N0. 90\/06\n                             -50-\n\n\nowner itself, the transaction will be a licence. The legal\n\npossession therefore continues with the owner of the\n\nproperty, but the licensee is permitted to make use of the\n\npremises for a particular purpose. But for the permission,\n\nhis occupation would be unlawful. Such permission does not\n\ncreate in favour of the permissee any estate or interest in\n\nthe property. Therefore there is clear distinction between\n\nthe two concepts.\n\n     21. As rightly argued by Mr.C. Unnikrishnan the\n\ndividing line between the two concepts of lease and licence\n\nis clear. But at times the line becomes very thin and even\n\ngets blurred. On a survey of the decisions it would appear\n\nthat the prevailing trend of judicial opinion regarding the\n\ndistinction between lease and licence is reflected in\n\nErrington v.Errington, (1942 - 1 ALL ER 149) wherein Lord\n\nDenning on a review of the case law on the subject would\n\nstate as follows:\n\nRFA. N0. 90\/06\n                              -51-\n\n\n     \"The result of all these cases is that, although a person\n     who is let into exclusive possession is \"Primafacie\", to\n     be considered to be tenant, nevertheless he will not be\n     held to be so if the circumstances negative any\n     intention to create a tenancy\"\n\n\nIn Rajappan v. Veeraraghava (1969 KLT 811)              Justice\n\nKrishnamoorthy Iyer of this Court has held that \"the primary\n\nand important character of the lessee's right is his right to\n\npossession and enjoyment of the demised land to the\n\nexclusion of the lessor.\" The Hon'ble Supreme Court has\n\nheld in Qudrat Ullah v. Municipal Board, Bereli<\/a> ( 1974 (1)\n\nSCC 202 that there is no simple litmus test to distinguish a\n\nlease as defined in Section 105 of Transfer of Property Act\n\nfrom a license as defined in Section 52 of Easement Act, but\n\nthe character of the transaction turns on the operative\n\nintend of the parties. To put it pithily, if an interest in\n\nimmovable property, entitling the transferors (sic) to\n\nenjoyment, is created, it is a lease; if permission to use land\n\nwithout right to exclusive possession is alone granted, a\n\nRFA. N0. 90\/06\n                             -52-\n\n\nlicense is the legal result. Marginal variations to this broad\n\nstatement are possible. In the case of Parameswaran Pillai\n\nv. Gopinathan Nair,<\/a> (1975 KLT 64)         decided by Justice\n\nK.Bhaskaran,     the facts are similar to the facts of the\n\npresent case. It was held therein that \"no doubt, for the\n\npurpose of carrying on the trade and for the effective\n\nperformance of the terms of the contract contained in\n\nExt.P3, it might have been certainly necessary for him to\n\nenter the plaint schedule property and also to remain there\n\nas long as his business remained there. Such possession, as\n\nrightly pointed out by the counsel for the respondent, is in\n\nthe nature of custody, which has to be distinguished from\n\nlegal possession as understood in law. At any rate, it is not\n\npossible to find out from Ext.P2 that any interest in\n\nimmovable property was passed from the plaintiff to the\n\ndefendant.\" Justice Varghese Kalliath, also had occasion to\n\nnotice the distinction between the lease and licence        in\n\nRFA. N0. 90\/06\n                               -53-\n\n\nUlahannan v. George (1988 (1) KLT 335).           The learned\n\nJudge held that \"the primary and important character of the\n\nlessees right is his right to possession and enjoyment of the\n\ndemised land to the exclusion of the lessor. The Supreme\n\nCourt in Corporation of Calicut v. K.Sreenivasan<\/a> (2002) 5\n\nSCC 361) held that \"person having permission or authority\n\nto occupy the property under certain terms without having\n\nany right or interest in the property which remain with the\n\nowner, is a licensee -though occupation of the licensee is\n\npermissive but he acquires right to continue his occupation\n\nunless the authority or license has expired or the same has\n\nbeen determined or license revoked or licensee evicted.\"\n\nThe   Supreme     Court    in   C.M.Beena    and   another   v.\n\nP.N.Ramachandra Rao, (2004(3) SCC 595) held that user of\n\nthe terms like \"lease\" or \"License\", \"lesser\", or \"licensor\"\n\n\"rent\" or \"license fee\" is not by itself decisive of the nature\n\nof the right created by the document. An effort should be\n\nRFA. N0. 90\/06\n                              -54-\n\n\nmade to find out whether the deed confers a right to\n\npossess exclusively coupled with transfer of a right to enjoy\n\nthe property or what has been parted with is merely a right\n\nto use the property while possession is retained by the\n\nowner.      When the issue is considered in the light of the\n\nabove decisions there is not much difficulty to accept the\n\nargument of Mr.Unnikrishnan that in the present case\n\nexclusive possession of the property coupled with transfer of\n\na right to enjoy the property has not been transferred to the\n\ndefendant. The evidence on the contrary will reveal that the\n\nplaintiffs are collecting usufructs of the property and they\n\nalone have the right to enjoy the usufructs of the property.\n\nRight to collect usufructs of the property and to enjoy the\n\nusufructs presupposes necessary tilling of the land (so much\n\nof the land as occupied by the fruit bearing trees standing\n\ntherein) and manuring. The evidence reveals that what the\n\ndefendant was given is only a permission to use the\n\nRFA. N0. 90\/06\n                               -55-\n\n\nremainder portions of the land for the purpose of carrying\n\non timber business.\n\n     22. It is true that the Munsiff's Court in Ext.A8\n\njudgment      has used the terms \"Lessee\" and \"rent\" in\n\ndifferent parts of Ext.P8, i.e. in page 3 paragraph 9 bottom\n\n\"Therefore, I hold that the plaintiff (defendant herein) is in\n\npossession and occupation of the plaint schedule property\n\nas a lessee on monthly rent for his timber business under\n\nthe first defendant, who is in enjoyment of the trees\n\nstanding in the property, and the plaintiffs has no right to\n\nenjoyment of the plaint schedule property except the user of\n\nthe property for his timber business as a lessee under the\n\nfirst defendant and the plaintiff cannot be held to be in\n\nexclusive possession of the plaint schedule property and his\n\npossession is limited to the user of the premises for doing\n\nhis timber business on a rental basis under the first\n\ndefendant.\" However, the learned Munsiff has clearly found\n\nRFA. N0. 90\/06\n                             -56-\n\n\nthat the exclusive possession of the property and right of\n\nenjoyment of the property in full has not been transferred to\n\nthe defendant. The finding in Ext.A8 notwithstanding the\n\nusage of the terms \"lessee\" and \"rent\" means only that\n\ndefendant is only a user of the property without exclusive\n\nenjoyment of the property. In the light of the judgment of\n\nthe   Supreme    Court   in  C.M.Beena      and    another   v.\n\nP.N.Ramachandra Rao (2004(3) SCC 595 usage of the terms\n\n\"lessee\" and \"rent\" are not by itself decisive of the nature of\n\nthe right created by the document.          The case of the\n\ndefendant is that it is a very long lease or lease in\n\nperpetuity or lease exceeding period of one year which was\n\ngiven to him. In terms of section 107 of the T.P. Act and\n\nsection 47 of the Registration Act it is mandatory that leases\n\nfor a term exceeding one can be made only by means of a\n\nregistered instrument. It will not be possible to accept the\n\ncase of the defendant that being lessee of the land in\n\nRFA. N0. 90\/06\n                               -57-\n\n\nquestion which is supported only by Ext.B2 or Ext.A4, both\n\nof which are not registered documents. Under the above\n\ncircumstances according to me, the conclusion is irresistible\n\non a consideration of the entire evidence available in this\n\ncase that the relationship between the parties is only that of\n\nlicensor and licensee continuing on the basis of the original\n\nlicence granted by late Bhaskara Pillai, father of the\n\nplaintiffs.\n\n     23. The next question which arises is whether the\n\nappellant is entitled to the protection of section 106 of the\n\nKerala Land Reforms Act. In the light of my finding that the\n\nrelationship between the parties is that of licensor and\n\nlicensee the above question does not seriously arise.      Even\n\nassuming that the arrangement between the parties is a\n\nlease, then also it will be difficult to hold that the defendant\n\nis entitled to the protection of immunity from eviction\n\nconferred under section 106 of the KLR Act. The statutory\n\nRFA. N0. 90\/06\n                             -58-\n\n\nmandates for obtaining the protection of section 106 is that\n\non land leased out for commercial or industrial purpose, the\n\nlessee     should have constructed buildings on or before 20-\n\n5-1967. As rightly submitted by Mr.Unnikrishnan neither in\n\nthe written statement nor in Ext.A6 reply notice, in A7 plaint\n\nin O.S.1181 of 1978, in A11 plaint in O.S. No. 2905 of 1992\n\nor in Ext.B4 reply notice dated 15-5-1980 the defendant\n\ndoes not state as to what was the actual date on which he\n\nconstructed     the   building.      The    submissions     of\n\nMr.S.V.Balakrishna Iyer in the light of the finding in Ext.A8\n\nthat the lease was given on 10-2-1967 have some appeal\n\nwhen the issue is explored in the realm of probabilities. But\n\nthere is Ext.A10 certificate relied on by the plaintiff. A10\n\ndated 3-12-1979 is issued by the Ulloor Panchayath. A10\n\nwill show that the Panchayat has issued licence for stocking\n\nand selling timber on plaint schedule premises on 20-2-\n\n1968, for the erecting machinery on 14-2-1968 and for\n\nRFA. N0. 90\/06\n                             -59-\n\n\nputting up shed No. UP. 4\/86 on 5-10-1968. Ext.A4 deed\n\nhas not been relied on by the learned Subordinate Judge in\n\nthe impugned judgment mainly on the reason that steps\n\nhave not been taken in proving the signatures of the\n\ndefendant in Ext.A4 by the plaintiff. As already indicated\n\nearlier, Sri.S.V.Balakrishna Iyer, the learned senior counsel\n\nin his submissions did not disown Ext.A4 completely. In\n\nfact he submitted that the terms of the real transaction\n\nbetween the parties in respect of the plaint schedule\n\nproperty were substantially as recorded in Ext.A4.        He\n\nassailed Ext.A4 only to the extent it mentions the date of\n\nentry into the property by the defendant as 20-2-1967.\n\nSuch a date was deliberately incorporated so as to deprive\n\nthe defendant of the benefit of section 106 of the KLR Act,\n\naccording to Mr.Balakrishna Iyer.      Having gone through\n\nExt.A4 and having compared the purported signatures of\n\nSri.Narayana Pillai in Ext.A4 with his admitted signatures in\n\nRFA. N0. 90\/06\n                             -60-\n\n\nExt.A7 and his own deposition before the Court and other\n\npapers available in the records containing his admitted\n\nsignatures including his affidavit dated 4th March, 1957 and\n\nhaving regard to the apparent situation that Mr.Narayana\n\nPillai's signature is a seasoned one, I am inclined to feel\n\nthat Sri.Narayana Pillai himself is the signatory to Ext.A4.\n\nAs rightly submitted by Mr.Balakrishna Iyer all the terms in\n\nExt.A4 which is written on stamp paper purchased in the\n\nname of Sri.Narayana Pillai from a local vendor some three\n\nweeks prior to the execution of Ext.A4 are favourable to\n\nSri.Narayana Pillai who is described therein as the lessee of\n\nthe land. The only question which arises for consideration is\n\nwhether there is any manipulation in the matter of\n\nmentioning the date of entry as second June 1967? I am\n\nnot very much impressed by the submission of the learned\n\nsenior counsel Mr.Balakrishna Iyer that a date later than\n\n20th May, 1967 was deliberately mentioned in Ext.A4 for\n\nRFA. N0. 90\/06\n                             -61-\n\n\nevading section 106 KLR Act. Section 106 of the KLR Act\n\nwas substituted as it presently obtains by Act 35 of 1969\n\nwhich came into effect on 17-12-1969.          Prior to such\n\nsubstitution section 106 read as follows:\n\n      \"Notwithstanding anything contained in this Act, or in\n     any other law, or in any contract, or order or decree of\n     Court, where on any land leased for commercial or\n     industrial purpose, the lessee has constructed buildings\n     for such commercial or industrial purpose before the\n     18th December, 1957, he shall not be liable to be\n     evicted from such land, but shall be liable to pay rent\n     under the contract of tenancy. Such rent shall be liable\n     to be varied every twelve years on the motion of the\n     lessor or the lessee, in such manner as may be\n     prescribed.\"\n\nThere is absolutely no case for the defendant that he was in\n\npossession of the land as lessee prior to 18th December 1957\n\nor that the buildings were constructed before that date.\n\nEven before this court, the case was only that the lease\n\ncommenced on 10-2-1966. Ext.A4 is dated 30th September,\n\n1967 and it is long thereafter only on 17-12-1969 that\n\nsection 106 was substituted into the present form and the\n\nRFA. N0. 90\/06\n                             -62-\n\n\ndate 20th May 1967 attained significance. Thus going either\n\nby Ext.A4 or by Ext.A10 the conclusion becomes irresistible\n\nthat the construction of the building was only subsequent to\n\n20th may 1967.      In the teeth of Exts.A4 and A10 the\n\nargument of Mr.Balakrishna Iyer based on the apparent\n\nfinding in Ext.A8 and in the impugned judgment that the\n\ndefendant entered into the property on 10-2-1966 cannot\n\nreceive acceptance. The finding of the learned Subordinate\n\nJudge that the lease was on 10-2-1966 was assailed\n\nstrongly by Mr.Unnikrishnan invoking Rule 22 of Order 41\n\nCPC without filing any cross objections.      The impugned\n\njudgment will show that the learned Subordinate Judge has\n\nfound at paragraph 13 of his judgment that the learned\n\nMunsiff in Ext.A8 has found that the defendant had come\n\ninto possession of the property on 10-2-1966. But on going\n\nthrough Ext.A8, it is seen that the learned Munsiff has not\n\nentered any finding as to when the plaintiff in A8 suit came\n\nRFA. N0. 90\/06\n                             -63-\n\n\ninto possession of the property. The date of commencement\n\nof possession was never considered by the learned Munsiff\n\nthough it is true that the learned Munsiff found that rent\n\nreceipt dated 10-2-1966 had been issued by Bhaskara Pillai\n\nin favour of Narayana Pillai, the defendant herein.\n\nAccording to me, the crux question to be decided is whether\n\nthe defendant is a lessee and whether the buildings in\n\nquestion were put up by him prior to 20-5-1967. Both hose\n\nquestions necessarily have to be answered against the\n\ndefendant. B6 series receipt are produced by the defendant.\n\nThese are receipts against remittance of payment of\n\nmonthly rent. Earliest one is dated 2-7-1967 and the same\n\nis for the month of June 1967. From the above receipt and\n\nfrom Ext.A4, the version of the plaintiff that the lease\n\ncommenced on 2-6-1967 appears to be more probable.\n\nWhatever that be, there is no evidence to justify finding that\n\nthe buildings were constructed prior to 20-5-1967 and I\n\nRFA. N0. 90\/06\n                              -64-\n\n\ntherefore confirm the finding of the Subordinate Judge that\n\nthe appellant is not entitled for protection of section 106 of\n\nthe KLR Act.\n\n     24. The question which arises nest is whether the\n\nappellant is entitled to the benefit of section 60(b) of the\n\nEasements Act. It has been very clearly held by a Division\n\nBench of this Court in Geetha Varma v. Amminikutty,<\/a> (1995\n\n(1) KLT 525) that the meaning of the words \"acting upon\n\nlicence\" mean the state of mind of the licensee at the time\n\nwhen he constructed the structures or building.      In a case\n\nwhere the licensee has considered himself to be a lessee or\n\nmortgagee and has constructed the building or erected other\n\nstructures in the property, he would not be entitled to get\n\nthe benefit under section 60(b). The stand of the appellant\n\nthrough out was that he is a lessee.       Thus following the\n\njudgment of the Division Bench in Geetha Varma's case it\n\nwill have to be found that the appellant is not entitled to the\n\nRFA. N0. 90\/06\n                               -65-\n\n\nbenefit of section 60(b). Section 60(b) is subject to contract\n\nto the contrary. In view of my finding that Ext.A4 is in all\n\nprobabilities executed by the defendant and in view of the\n\nsubmission of Mr.Balakrishna Iyer that Ext. A4 incorporates\n\nthe terms of the transaction between the parties in respect\n\nof the suit property except the date of commencement of\n\nthe lease I am of the view that there is a contract to the\n\ncontrary incorporated in Ext.A4 that the defendant shall\n\nremove the structures upon his vacating the premises. In\n\nthis context it will be noticed that in cross examination DW1\n\nalso stated that security amount was deposited to be paid\n\nback at the time when the premises are vacated.        For both\n\nthese reasons the appellant will not be entitled for the\n\nbenefit of section 60(b).\n\n     25. The question which now arises is whether the suit\n\nis barred by limitation.     The question of limitation in the\n\nfacts and circumstances of this case arises not as a pure\n\nRFA. N0. 90\/06\n                               -66-\n\n\nquestion of law but as a mixed question of law and fact. The\n\nquestion whether the suit is barred will have to be\n\nadjudicated. In other words, for deciding whether the suit is\n\nbarred by limitation, the issue regarding the continuation of\n\nthe jural relationship of the parties ignoring Ext.B1 will have\n\nto be enquired into and settled by the court.        A Division\n\nBench of this Court in Musliarakath Abdulla v. Abdul Azeea\n\nNaha<\/a> (2006(2) KLT 228) held that the question of limitation\n\nis a question of law only if it arises out of admitted facts. If\n\non the averments in the plaint, the suit is not barred by\n\nlimitation, the defendant will have to deny the averments\n\nand plead that the suit is barred by limitation.        In the\n\nabsence of such contentions, the averments in the plaint\n\nregarding cause of action will have to be accepted.         The\n\nSupreme       Court also   in      Rama    Murthy   v.  Ravula\n\nSomasundaram<\/a> (2005) 6 SCC 614) held that in cases where\n\nthe question of limitation is a mixed question of fact and law\n\nRFA. N0. 90\/06\n                              -67-\n\n\nand the suit does not appear to be barred by limitation on\n\nthe face of it, then the facts necessary to prove limitation\n\nmust be pleaded, an issue raised and then proved. In the\n\ninstant case on the averment in the plaint the suit is not\n\nbarred by limitation.       The defendant did not raise a\n\ncontention that the suit is barred and no              issue was\n\ntherefore raised regarding limitation.      I find force in the\n\nsubmission of Mr.Unnikrishnan that serious prejudice will be\n\noccasioned to the plaintiff if the defendant is permitted to\n\nraise the issue of limitation now in the absence of pleading.\n\nIt will be noticed that the case of the plaintiff is that ignoring\n\nExt.B1 notice issued by Bhaskara Pillai the jural relationship\n\nbetween the parties was allowed to continue till the issuance\n\nof Ext.A5 notice dated 3-2-1994 based on which the present\n\nsuit is filed. Even in Ext.A6 reply dated 11-2-1994 the\n\ndefendant admitted the relationship between the parties and\n\noffered to pay the rent and the arrears. The suit according\n\nRFA. N0. 90\/06\n                             -68-\n\n\nto me, cannot be rejected as barred by limitation. I am\n\npersuaded to take such a view in view of the judgment of\n\nthe Supreme Court in P.T.Munichikkanna Reddy and others\n\nv. Revamma and others<\/a> (2007) 6 SCC 59 and the view of\n\nthis court in Eapen Panicker v. Krishna Panicker<\/a> (1970 KLT\n\n42).\n\n     26. The question which arises last is whether the\n\npresent suit for mandatory injunction can be a substitute for\n\na regular suit for recovery of possession. According to me\n\nthis issue has been settled by the Supreme Court by its\n\njudgment in Joseph Severance v. Benny Mathew<\/a> (2005(4)\n\nKLT 290 wherein it was held that specific plea should have\n\nbeen taken in the written statement itself to the effect that\n\nsuit was not maintainable being one for mandatory\n\ninjunction and not one for recovery, since such a question is\n\nnot a substantial question of law, but one whose\n\nadjudication would depend upon factual adjudication of the\n\nRFA. N0. 90\/06\n                              -69-\n\n\nissue relating to reasonableness of time. It will also be seen\n\nthat the Supreme Court has in Sant Lal Jain v. Avtar Singh\n\n(AIR<\/a> 1985 SC 857) held that the suit is in effect one for\n\npossession though couched in the form of a suit for\n\nmandatory injunction as what would be given to the plaintiff\n\nin case he succeeds is possession of the property which he\n\nmay be found to be entitled. Therefore, I am of the opinion\n\nthat the appellant should not be denied relief merely\n\nbecause he had couched the plaint in the form of a suit or\n\nmandatory injunction.\n\n     The appeal will stand dismissed. However, the parties\n\nare directed to suffer their costs in this appeal.\n\n\n\n\n                     (PIUS C.KURIAKOSE, JUDGE)\n\nsv\/ksv\/mt.\n\n\n? IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAR.No. 44 of 2008()\n\n\n1. M\/S.MOTOROLA INDIA PRIVATE LIMITED\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. BHARAT SANCHAR NIGAM LIMITED, A COMPANY\n                       ...       Respondent\n\n2. CHIEF GENERAL MANAGER, KERALA TELECOM\n\n                For Petitioner  :SRI.E.K.NANDAKUMAR\n\n                For Respondent  :SRI.K.RAMAKUMAR (SR.)\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :24\/04\/2009\n\n O R D E R\n                   PIUS C. KURIAKOSE, J.\n          -----------------------------------------------\n                      A.R. No. 44 OF 2008\n          -----------------------------------------------\n           Dated this the 24th day of April, 2009\n\n                           O R D E R\n<\/pre>\n
     M\/s. Motorola India (P) Ltd. is once again before this<\/p>\n
court invoking the power of the Chief Justice under<\/p>\n
subsection (6) of section 11 of the Arbitration and<\/p>\n
Conciliation Act, 1996 and the Scheme for Appointment of<\/p>\n
Arbitrators.   The earlier motion of the applicant was AR.<\/p>\n
No.18\/06 which was allowed by this court under Annexure<\/p>\n
P7 order. Annexure P7 was approved by the Honourable<\/p>\n
Supreme Court under Annexure P8. As in Annexure P7 case<\/p>\n
the respondents in this application are Bharat Sanchar<\/p>\n
Nigam Limited and the Chief General Manager, Kerala<\/p>\n
Telecom Circle of BSNL Ltd. Annexure P1 dated 4-1-2001 is<\/p>\n
copy of the tender notice issued by the second respondent<\/p>\n
on behalf of the first respondent inviting bids from eligible<\/p>\n
bidders for the planning, engineering, supply, installation<\/p>\n
and commissioning of GSM based cellular mobile network in<\/p>\n
AR. N0. 44\/08
\n                              -2-<\/span><\/p>\n
the telecom circles of the Southern Region covering the<\/p>\n
States of Kerala, Karnataka, Tamil Nadu and Andhra<\/p>\n
Pradesh. The applicant submits that disputes have arisen<\/p>\n
between them and the first respondent on account of what<\/p>\n
is described as arbitrary and illegal actions of the first<\/p>\n
respondent in purporting to withhold monies rightfully due<\/p>\n
and payable to the applicant under Annexure P1. Applicant<\/p>\n
refers to and extracts clause 20, the arbitration clause in<\/p>\n
Annexure P1 as contained in section 3 thereof.           The<\/p>\n
applicant points out that it is evident from clause 20.1 of<\/p>\n
Annexure P1 that any dispute which arises under the tender<\/p>\n
or in connection therewith would be referred to the sole<\/p>\n
arbitration of respondent No.2 or in case his designation is<\/p>\n
changed or his office is abolished, in such cases to the sole<\/p>\n
arbitration of the Officer for the time being entrusted with<\/p>\n
the functions of the second respondent. It is pointed out<\/p>\n
that clause 20.1 further provides that if respondent No.2 or<\/p>\n
AR. N0. 44\/08
\n                             -3-<\/span><\/p>\n
the said officer is unable or unwilling to act as such, then<\/p>\n
the disputes should be referred to the sole arbitration of<\/p>\n
some other persons appointed by respondent No.2 or the<\/p>\n
said officer. The applicant highlights the last line of clause<\/p>\n
20.1 and mentions that the last sentence of clause 20.1<\/p>\n
expressly states that      the agreement to appoint an<\/p>\n
arbitrator should be in accordance with the Arbitration and<\/p>\n
Conciliation Act, 1996. The applicant relies on Annexure P2<\/p>\n
clarification issued by the first respondent wherein it has<\/p>\n
been clarified that while appointing arbitrator in accordance<\/p>\n
with the relevant Arbitration Act, the arbitrator shall be a<\/p>\n
neutral party and due care will be taken to appoint an<\/p>\n
arbitrator in accordance with the provisions of the Act.<\/p>\n
      2. The applicant claims on the basis of Annexure P2<\/p>\n
that the person to be appointed as arbitrator by the second<\/p>\n
respondent should be a neutral person belonging neither to<\/p>\n
the applicant nor to the first respondent.      Annexure P3<\/p>\n
AR. N0. 44\/08
\n                              -4-<\/span><\/p>\n
dated 25-10-05 is copy of the notice invoking arbitration<\/p>\n
clause sent by the petitioner through its lawyers in the light<\/p>\n
of the disputes between the parties.       Subsequently, the<\/p>\n
General Manager (CMTS), BSNL, Trivandrum sent Annexure<\/p>\n
P4 letter to the applicant calling upon the applicant to refer<\/p>\n
the disputes arising out of Annexure P1 agreement to the<\/p>\n
second respondent CGMT who alone is the concerned<\/p>\n
authority in terms of Annexure P1. To Annexure P4 dated<\/p>\n
8-11-200t the applicant readily sent Annexure P4(2) and (3)<\/p>\n
dated 17-11-2005 stating that Annexure P3 was correctly<\/p>\n
addressed and that copy of Annexure P3 was marked to<\/p>\n
second respondent so that he could appoint an independent<\/p>\n
arbitrator since he himself was disqualified from acting as<\/p>\n
arbitrator having dealt with the tender and the decision to<\/p>\n
withhold payments due to the petitioner under the tender.<\/p>\n
Pursuant to Annexure P4 (2) and (3) the second respondent<\/p>\n
appointed one N.Haribabu, GM(O), Office of the PGM, TD<\/p>\n
AR. N0. 44\/08
\n                              -5-<\/span><\/p>\n
Ernakulam to act as arbitrator and Annexure P5 is the<\/p>\n
communication issued in that regard.           On receiving<\/p>\n
Annexure P5 the applicant informed the first respondent<\/p>\n
that the appointment of Sri.N.Haribabu was unjustified and<\/p>\n
illegal. The first respondent would refute the stand of the<\/p>\n
applicant and contend that      there was no justification or<\/p>\n
illegal sanction for attributing bias on the arbitrator. The<\/p>\n
applicant would reiterate their stand by letter dated 31-1-<\/p>\n
2006 rejecting the appointment of Sri.Haribabu as the<\/p>\n
arbitrator inter alia on the ground that there are justifiable<\/p>\n
doubts about the impartiality and neutrality of Sri.Haribabu<\/p>\n
in as much as he is an employee of the first respondent and<\/p>\n
a subordinate officer of the second respondent. Annexure<\/p>\n
P6 collectively are copies of these letters.   The applicant<\/p>\n
produced Annexure P7 and submits that in the context of<\/p>\n
certain other disputes which arose between the applicant<\/p>\n
and the first respondent relating to alleged liability of the<\/p>\n
AR. N0. 44\/08
\n                              -6-<\/span><\/p>\n
applicant for delay,   the applicant approached this Court<\/p>\n
under section 11(6) seeking appointment of an independent<\/p>\n
and impartial arbitrator and that this court allowed the said<\/p>\n
application and appointed Mr.Justice K.T.Thomas, a retired<\/p>\n
Judge of the Supreme Court of India. Against Annexure P7<\/p>\n
the applicant filed a special leave petition before the<\/p>\n
Hon’ble Supreme Court.      But the Supreme Court would<\/p>\n
confirm Annexure P7 by Annexure P8 judgment. Referring<\/p>\n
to certain passages in the judgment of the Supreme Court,<\/p>\n
the applicant highlights that the test of impartiality and<\/p>\n
independence of the arbitrator required by section 12 of the<\/p>\n
Act would not be satisfied if the CGM Kerala Circle is to be<\/p>\n
appointed as arbitrator. The applicant concedes that they<\/p>\n
filed objections before the arbitrator on 2nd December, 2005<\/p>\n
inter alia taking   the ground that the arbitrator suffered<\/p>\n
from inherent bias and lacked independence.          But by<\/p>\n
Annexure P9 the objections were overruled by the<\/p>\n
AR. N0. 44\/08
\n                             -7-<\/span><\/p>\n
arbitrator.   The applicant submits that thereafter the<\/p>\n
applicant participated in the arbitration proceedings under<\/p>\n
protest. After Annexure P8 judgment of the Supreme Court<\/p>\n
was available the applicant submitted a fresh application<\/p>\n
dated 28-9-2008 before the arbitrator seeking withdrawal<\/p>\n
of the arbitrator from the post of sole arbitrator contending<\/p>\n
that the mandate stood de jure terminated in view of the<\/p>\n
judgment of the Supreme Court and sought reference of the<\/p>\n
disputes to arbitration before Mr. Justice K.T.Thomas since<\/p>\n
both parties will have to appear before Mr. Justice<\/p>\n
K.T.Thomas pursuant to Annexure P8 for adjudication of<\/p>\n
other disputes and differences arising under the very same<\/p>\n
contract. Annexure P10 is copy of the said application. But<\/p>\n
AnnexureP10 was dismissed by the arbitrator by Annexure<\/p>\n
P11 order dated 29-9-2008.      Seeking reconsideration of<\/p>\n
Annexure P11 the applicant submitted Annexure P12<\/p>\n
application which was also dismissed by the arbitrator by<\/p>\n
AR. N0. 44\/08
\n                              -8-<\/span><\/p>\n
Annexure P13 order.\n<\/p>\n
     3. The applicant contends that       a mere perusal of<\/p>\n
Annexure P13 would demonstrate that the arbitrator is de<\/p>\n
jure incapable of    performing his duties as an arbitrator.<\/p>\n
According to the applicant, from the very outset the<\/p>\n
appointment of Sri.Haribabu as arbitrator for arbitration of<\/p>\n
present disputes was illegal, invalid and null and void, since<\/p>\n
it was in violation of the mandatory principles of impartiality<\/p>\n
and     neutrality of an arbitrator, that Sri. Haribabu, an<\/p>\n
employee of the first respondent was appointed as the<\/p>\n
arbitrator. The applicant submits that by letter dated 17-<\/p>\n
10-08      the applicant’s  counsel   informed   the   second<\/p>\n
respondent that the mandate of the arbitrator stood<\/p>\n
terminated particularly in the light of the judgment of the<\/p>\n
Supreme Court Annexure P8 as Sri.Haribabu           is de jure<\/p>\n
disqualified to act as arbitrator and requested the second<\/p>\n
respondent to confirm that Mr.Justice K.T.Thomas who was<\/p>\n
AR. N0. 44\/08
\n                             -9-<\/span><\/p>\n
already appointed as the sole arbitrator under the same<\/p>\n
contract, would act as the arbitrator in relation to the<\/p>\n
disputes that were referred to him. That letter was also<\/p>\n
answered in the negative by the second respondent by<\/p>\n
Annexure P14 letter dated 18-10-2008. According to the<\/p>\n
applicant, in view of the judgment of the Supreme Court,<\/p>\n
Annexure P8 there is no room for doubt that themandate of<\/p>\n
N.Haribabu stands terminated as he is de jure disqualified<\/p>\n
to act as an arbitrator. Without prejudice to that contention<\/p>\n
the applicant also contends that the mechanism for<\/p>\n
appointment of an arbitrator under the contract is void and<\/p>\n
cannot be given effect to and therefore only this Court has<\/p>\n
the jurisdiction to appoint an arbitrator.        Hence the<\/p>\n
arbitration request seeking the following relief:<\/p>\n
     “Appoint a sole arbitrator being an independent and
\n     impartial  arbitrator  for  adjudication    of disputes
\n     between the petitioner and the first respondent arising
\n     from the tender”.\n<\/p><\/blockquote>\n
AR. N0. 44\/08
\n                            -10-<\/span><\/p>\n
     4. A joint counter affidavit has been filed by<\/p>\n
respondents 1 and 2 raising various contentions.       At the<\/p>\n
outset it is contended that the application is not<\/p>\n
maintainable in law or on facts.     It is submitted that an<\/p>\n
application under subsection (6) of section 11 is not<\/p>\n
maintainable when a duly appointed arbitrator is already in<\/p>\n
seizin of the matter. It is also submitted that the dispute<\/p>\n
regarding termination of the mandate of arbitrator is not<\/p>\n
liable to be agitated in an application under subsection (6)<\/p>\n
of section 11.      More specifically it is contended that<\/p>\n
subsection (6) of section 11 is not attracted in this case (a)<\/p>\n
since the CGMT had already appointed arbitrator in terms of<\/p>\n
clause 20 and under the provisions of the Act, (b) since<\/p>\n
there was no failure of two arbitrators to reach an<\/p>\n
agreement in this case and ) since there was no failure on<\/p>\n
the part of CGMT to perform his functions.         It is then<\/p>\n
submitted that Sri.Haribabu, whose competence and<\/p>\n
AR. N0. 44\/08
\n                              -11-<\/span><\/p>\n
functioning is also challenged in the instant application is<\/p>\n
not made a party to this application and hence the petition<\/p>\n
is bad for non-joinder of necessary parties. Without<\/p>\n
prejudice to the contention regarding maintainability, it is<\/p>\n
alleged that the instant application amounts to gross abuse<\/p>\n
of process of this court. It is pointed out that the objective<\/p>\n
of the applicant is to delay the adjudication of the instant<\/p>\n
arbitration by the present arbitrator, where the case stands<\/p>\n
posted for evidence for cross examination of witnesses on<\/p>\n
the side of the applicant. Annexure R2(a) copy of notice of<\/p>\n
posting      on resumption of hearing is produced in this<\/p>\n
context. It is contended that the instant application before<\/p>\n
this court is the 4th attempt of the respondent to wriggle out<\/p>\n
of the ongoing proceedings for the reason that in view of the<\/p>\n
manifest failure to fulfill various technical and contractual<\/p>\n
obligations the applicant apprehends that they may not be<\/p>\n
entitled to any favourable decision.     It is submitted that<\/p>\n
AR. N0. 44\/08
\n                               -12-<\/span><\/p>\n
though there was no justifiable basis for the challenge<\/p>\n
against the impartiality and independence of the arbitrator<\/p>\n
appointed, the applicant’s challenge was considered by the<\/p>\n
arbitrator with all seriousness. Annnexure R2(b) copy of the<\/p>\n
written submission made on behalf of the applicant and<\/p>\n
Annexure R2(c) copy of the arguments in reply submitted<\/p>\n
by BSNL are produced in this context. It is submitted that it<\/p>\n
is after considering all the issues that Annexure P9 order<\/p>\n
was passed. Annexure P9 order has become final and is<\/p>\n
binding on the parties. It is pointed out that the applicant<\/p>\n
continued to participate effectively in the arbitration<\/p>\n
proceedings after      filing proof affidavit and documents.<\/p>\n
Referring to section 13 of the Arbitration and Conciliation<\/p>\n
Act it is contended that when a challenge against            the<\/p>\n
arbitrator fails, the arbitrator is entitled to proceed with the<\/p>\n
hearing and finally     the affected party can challenge the<\/p>\n
decision rendered under section 13 or 16 of the Act only<\/p>\n
AR. N0. 44\/08
\n                              -13-<\/span><\/p>\n
through an application under section 34 against the final<\/p>\n
award and not otherwise. It is submitted that the applicant<\/p>\n
is indirectly trying to by-pass the legal mandates of sections<\/p>\n
13(4), 13(5) and 16 of the Act.\n<\/p>\n
     5.     The counter affidavit details how the issues which<\/p>\n
are being arbitrated by Mr.Justice K.T.Thomas which are<\/p>\n
different from the     issues which are being arbitrated by<\/p>\n
Sri.N.Haribabu. Annexures R2(d), R2 (e) are produced by<\/p>\n
the respondent in this context. It is pointed out that the<\/p>\n
only ground on which the BSNL resisted the applicant’s<\/p>\n
request for arbitration was that the dispute was an excepted<\/p>\n
matter and hence not arbitrable. It was that contention<\/p>\n
which was ultimately repelled by the Hon’ble Supreme Court<\/p>\n
by Annexure P 8. By Annexure P8 decision rendered in the<\/p>\n
limited context considering the background of the case<\/p>\n
cannot be extended any further to hold that CGMT is<\/p>\n
incompetent to be the appointing authority or to find that<\/p>\n
AR. N0. 44\/08
\n                            -14-<\/span><\/p>\n
clause 20 is unconscionable and illegal. It is submitted that<\/p>\n
the mechanism provided under clause 20 of the agreement<\/p>\n
for appointment of the arbitrator is absolutely legal and<\/p>\n
proper after mutual consent of the parties and hence the<\/p>\n
parties cannot retract from the position. Neither this Court<\/p>\n
in Annexure P7 nor the Hon’ble Supreme Court in Annexure<\/p>\n
P8 accepted the proposition of the petitioner that clause 20<\/p>\n
which enables appointment of CGMT as arbitrator is illegal.<\/p>\n
Annexure P13 order, it is submitted was finally passed by<\/p>\n
the arbitrator applying his mind to all the objections in the<\/p>\n
application submitted by the applicant under section 14 of<\/p>\n
the Act alleging that the arbitrator is de jure disqualified.<\/p>\n
Annexure R2(f) order dated 6-10-08 permitting variation of<\/p>\n
the earlier order and the consequential corrected order<\/p>\n
Annexure R2(g) are produced. It is pointed out that it was<\/p>\n
subsequent to R2(g)     that the applicant filed   a request<\/p>\n
before the CGMT on 17-10-08, significantly on the date of<\/p>\n
AR. N0. 44\/08
\n                            -15-<\/span><\/p>\n
the proposed hearing of the matter by the arbitrator for<\/p>\n
cross-examination of the witnesses of the applicant.<\/p>\n
Annexure R2(h) is copy of the above request of the<\/p>\n
applicant. R2 (g) addressed to CGMT who became functus<\/p>\n
officio after the appointment of Sri.N.Haribabu as arbitrator<\/p>\n
was certainly meant to be a dilatory tactics.     Still as a<\/p>\n
matter of fairness, BSNL conceded for an adjournment<\/p>\n
whereupon under the request of the applicant the case was<\/p>\n
adjourned sine die. Later CGMT has declined the request on<\/p>\n
proper grounds. Annexure R2(i) is copy of the letter dated<\/p>\n
18-10-08 issued by the CGMT.\n<\/p>\n
      6. I have     heard the    submissions   of Sri.Ciccu<\/p>\n
Mukhopadyaya, Advocate and Mr.Abhjeet Sinha, Senior<\/p>\n
Advocate on behalf of the applicant and those of Sri.P.<\/p>\n
Vijayakumar,     Advocate  and   Sri.K.Ramakumar,     Senior<\/p>\n
Advocate on behalf of the respondent. The learned counsel<\/p>\n
for the applicant drew my attention to subsection (8) of<\/p>\n
AR. N0. 44\/08
\n                             -16-<\/span><\/p>\n
section 11 and section 12 and section 14 of the Arbitration<\/p>\n
and Conciliation Act.     The learned counsel drew my<\/p>\n
attention also to the various    exhibits placed on record<\/p>\n
particularly, Annexures P3, P7 and       P11. The learned<\/p>\n
counsel would place reliance on the judgment of the Delhi<\/p>\n
High Court in Alcove Industries Ltd. v. Oriental Structural<\/p>\n
Engineers Ltd. (2008 (1) Arb. LR 393 (Delhi) to argue that<\/p>\n
on the occurrence of any of the contingencies mentioned in<\/p>\n
section 14 of the Arbitration and Conciliation Act the<\/p>\n
mandate of the arbitrator terminates automatically – ipso<\/p>\n
jure by force of law. Mr. Ciccu Mukhopadyaya relied on the<\/p>\n
very same decision to argue that the availability of a<\/p>\n
remedy under section 34 of the Act to have the award set<\/p>\n
aside is no good answer to the argument that the mandate<\/p>\n
of the arbitrator stands terminated by the apparent bias of<\/p>\n
the arbitrator. Relegating the petitioner to remedy under<\/p>\n
section 34 will be wasteful expense of time and resources,<\/p>\n
AR. N0. 44\/08
\n                              -17-<\/span><\/p>\n
since the award to be passed ultimately would not stand<\/p>\n
scrutiny in the    eyes of law. Counsel submitted on the<\/p>\n
authority of the very same decision that what the law<\/p>\n
stipulates as a disqualification to become       or remain an<\/p>\n
arbitrator in a given dispute is not the existence of actual<\/p>\n
bias, but the existence of such facts and circumstances as<\/p>\n
are likely to give rise to justifiable doubts as to his<\/p>\n
independence and impartiality.     In the instant case there<\/p>\n
exists justifiable doubts regarding the impartiality and<\/p>\n
independence of Sri.Haribabu.       Mr.Ciccu Mukhopadyaya<\/p>\n
relied also on the judgment of Gauhati High Court in State<\/p>\n
of Arunachal Pradesh v. Subhash Projects & Marketing Ltd.<\/a><\/p>\n
(2007(1) Arb. LR 564) to argue that the quintessence of an<\/p>\n
arbitral procedure is      fairness, and impartiality is an<\/p>\n
essential attribute of fairness. Therefore it is not enough to<\/p>\n
provide just any arbitration, not even a speedy arbitration<\/p>\n
but also an impartial arbitration. An arbitrator earns the<\/p>\n
AR. N0. 44\/08
\n                             -18-<\/span><\/p>\n
prerogative of conducting the proceedings by the confidence<\/p>\n
he commands.      Fairness, impartiality, independence and<\/p>\n
neutrality are the indispensable qualities of an arbitrator, so<\/p>\n
submitted the learned counsel on the authority of the above<\/p>\n
decision. The omission to invoke the procedure provided<\/p>\n
under section 13(2) will operate as an estoppel against a<\/p>\n
party from invoking the remedy available under section 14,<\/p>\n
so submitted Mr.Mukhopadyaya.         The judgment of the<\/p>\n
Calcutta High Court in Kailash Saving Units Pvt. Ltd. v.<\/p>\n
S.K.Ghosh, (1983 Arb. LR 404) was also relied on by the<\/p>\n
learned counsel to argue that when the arbitrator becomes<\/p>\n
a Judge in his own cause, actual bias need not be proved to<\/p>\n
vitiate the award.   The judgment of K.K.Narendran, J. in<\/p>\n
Koshy v. K.S.E.B.<\/a> (1983 KLT 674) was also relied on in this<\/p>\n
context by Mr.Mukhopadyaya to argue that the court has<\/p>\n
always power to grant leave to revoke the arbitrator’s<\/p>\n
authority. Supporting his argument that appointing Justice<\/p>\n
AR. N0. 44\/08
\n                              -19-<\/span><\/p>\n
K.T.Thomas in substitution of Sri.Haribabu will be justifiable<\/p>\n
the learned counsel relied on the judgment of the Delhi High<\/p>\n
Court in Cinevistaas Ltd. v. Prasar Bharati, (2008(106) DRJ<\/p>\n
682) wherein the Delhi High Court after substituting an<\/p>\n
arbitrator, appointed Justice D.P.Wadhwa who was already<\/p>\n
in seizin of similar connected disputes.\n<\/p>\n
     7.     Sri. K.Ramakumar,     senior counsel    for   the<\/p>\n
respondents      would    answer     the   submissions     of<\/p>\n
Sri.Mukhopadyaya on the basis of the various contentions<\/p>\n
raised in the counter affidavit. Strong reliance was placed<\/p>\n
by him on the judgment of the Supreme Court in Secretary<\/p>\n
to Government, Transport Dept. Madras v. Munuswamy<\/p>\n
Mudaliar and<\/a> another, (1988 (Supp) SCC 651) to argue that<\/p>\n
a named and agreed arbitrator cannot and should not be<\/p>\n
removed in exercise of a discretion vested in the Court<\/p>\n
under section 5 of the Act (Arbitration Act, 1940) unless<\/p>\n
there is allegation against the named arbitrator either<\/p>\n
AR. N0. 44\/08
\n                             -20-<\/span><\/p>\n
against his honesty or capacity or mala fide or interest in<\/p>\n
the subject matter or reasonable apprehension of        bias.<\/p>\n
Mr.Ramakumar       would   submit    that  bias    means    a<\/p>\n
predisposition to decide for or against one party, without<\/p>\n
proper regard to the true merits of the dispute. There must<\/p>\n
be reasonable apprehension of that predisposition based on<\/p>\n
cogent material. The test for bias, according to the learned<\/p>\n
senior counsel, is whether a reasonable intelligent man, fully<\/p>\n
appraised of all the circumstances with apparent bias.<\/p>\n
Capricious and unreasonable people should not be made the<\/p>\n
standard to regulate      normal   human    conduct.      Mr.<\/p>\n
Ramakumar placed reliance also on the judgment of the<\/p>\n
Supreme Court in Dharma Prathishthanam v. Madhok<\/p>\n
Construction (P) Ltd.<\/a> (2005 9 SCC 686) and particularly<\/p>\n
paragraph 31 of the judgment. Counsel argued that when<\/p>\n
parties have entered into a contract and settled a procedure,<\/p>\n
due importance has to be given to such procedure and the<\/p>\n
AR. N0. 44\/08
\n                             -21-<\/span><\/p>\n
court has to respect the terms of the contract entered into<\/p>\n
by the parties and shall endeavour to give importance and<\/p>\n
effect to the contract. In this context the learned senior<\/p>\n
counsel relied on the judgment of the Supreme Court Datar<\/p>\n
Switchgears Ltd. v. Tata Finance Ltd.<\/a> (2000) 8 SCC 151.<\/p>\n
     8. I have considered the rival submissions addressed at<\/p>\n
the bar in the light of the pleadings raised by the parties<\/p>\n
and the ratio emerging from the various decisions cited at<\/p>\n
the Bar.     The instant application is an application under<\/p>\n
section 11(6) of the Arbitration and Conciliation Act, 1996<\/p>\n
and the prayer is that the Chief Justice or the designate<\/p>\n
Judge appoints a sole arbitrator being an independent and<\/p>\n
impartial arbitrator for adjudication of the disputes between<\/p>\n
the parties which are subject matter of the arbitration<\/p>\n
request. It is not in dispute that clause 20 of section 3 of<\/p>\n
Ext.P1 contract incorporates a valid arbitration agreement<\/p>\n
between the parties at clause 20.1. Clause 20.1 reads as<\/p>\n
AR. N0. 44\/08
\n                               -22-<\/span><\/p>\n
follows:\n<\/p>\n
     “In the event of any question,dispute or difference
\n     arising under the agreement or in connection therewith
\n     (except as to the matters, the decision to which is
\n     specifically provided under this agreement), the same
\n     shall be referred to the sole arbitration of the CGM,
\n     Kerala Telecom Circle, BSNL or in case his designation
\n     is changed or his office is abolished, then in such cases
\n     to the sole arbitration of the officer for the time being
\n     entrusted (whether in addition to his own duties or
\n     otherwise) with the functions of the CGM, Kerala
\n     Telecom Circle, BSNL or by whatever designation such
\n     an officer may be called (hereinafter referred to as the
\n     said officer), and if the CGM, Kerala Telecom Circle or
\n     the said officer is unable or unwilling to act as such,
\n     then to the sole arbitration of some other person
\n     appointed by the CGM, Kerala Telecom Circle or the
\n     said Officer. The agreement to appoint an arbitrator
\n     will be in accordance with the Arbitration and
\n     Conciliation Act 1996.<\/p><\/blockquote>\n
     There will be no objection to any such appointment on
\n     the ground that the arbitrator is a Government Servant
\n     or that he has to deal with the matter to which the
\n     agreement relates or that in the course of his duties as
\n     a Government Servant he has expressed his views on
\n     all or any of the matters in dispute. The award of the
\n     arbitrator shall be final and binding on both the parties
\n     to the agreement. In the event of such an arbitrator to
\n     whom     the   matter    is   originally referred,  being
\n     transferred or vacating his office or being unable to act
\n     for any reason whatsoever, the CGM, Kerala Telecom
\n     Circle, BSNL or the said officer shall appoint another<\/p>\n
AR. N0. 44\/08
\n                               -23-<\/span><\/p>\n
      person to act as an arbitrator in accordance with terms
\n      of the agreement and the person so appointed shall be
\n      entitled to proceed from the stage at which it was left
\n      out by his predecessors.”\n<\/p>\n
Clause 20.1 quoted above itself is relied on by the applicant<\/p>\n
to maintain the instant arbitration request under subsection<\/p>\n
(6) of section 11. Subsection (6) of section 11 comes into<\/p>\n
play when (a) a party fails to act as required under that<\/p>\n
procedure or (b) the parties, or the two appointed<\/p>\n
arbitrators fail to reach an agreement expected of them<\/p>\n
under that procedure or (c) a person including an<\/p>\n
institution, fails to perform any function entrusted to him or<\/p>\n
it under that procedure.       It is provided that under the<\/p>\n
above circumstances party may request the Chief Justice or<\/p>\n
any person or institution designated by him to take the<\/p>\n
necessary     measure,     unless  the   agreement    on  the<\/p>\n
appointment procedure provides other means for securing<\/p>\n
the appointment. According to me, subsection (6) of section<\/p>\n
11 cannot have application in this case where concededly<\/p>\n
AR. N0. 44\/08
\n                               -24-<\/span><\/p>\n
the appointing authority viz., CGM, Kerala Telecom Circle<\/p>\n
has already appointed Sri.N.Haribabu as the arbitrator for<\/p>\n
adjudication of the disputes as will be clear from Annexure P<\/p>\n
issued long prior to the institution of this arbitration request.<\/p>\n
Apparently clauses (b) and ) of subsection 6 of section 11<\/p>\n
do not apply at all to the instant case.\n<\/p>\n
     9. The basis for the applicant’s claim for appointment<\/p>\n
of arbitrator by the Chief Justice or designated Judge<\/p>\n
invoking the power under subsection (6) of section 11 is<\/p>\n
that the mandate of the arbitrator Sri.N.Haribabu stands<\/p>\n
terminated by virtue of section 14 of the Arbitration and<\/p>\n
Conciliation Act. The contention is that Sri.Haribabu has<\/p>\n
become de jure unable to perform his functions as<\/p>\n
arbitrator.   The case is that due to bias and absence of<\/p>\n
independence and impartiality the mandate of N.Haribabu,<\/p>\n
the appointed arbitrator stands terminated automatically.<\/p>\n
When the pleadings are carefully scanned, it will be seen<\/p>\n
AR. N0. 44\/08
\n                              -25-<\/span><\/p>\n
that the applicant does not contend that Sri.Haribabu does<\/p>\n
not possess the qualification required to arbitrate upon the<\/p>\n
disputes. The applicant also does not specifically challenge<\/p>\n
the integrity of Sri.Haribabu. The case of the applicant is<\/p>\n
only that the circumstances existing in this case give rise to<\/p>\n
justifiable doubt in the applicant’s mind as to the<\/p>\n
independence and impartiality of Sri.Haribabu. The specific<\/p>\n
allegation raised is that Sri.Haribabu is an employee of the<\/p>\n
first respondent BSNL, that the second respondent who<\/p>\n
appointed him, is his superior officer and hence it is<\/p>\n
humanly impossible for Sri.Haribabu to be independent or<\/p>\n
impartial, particularly when the superior officer has already<\/p>\n
held that the very withholding is made which were subject<\/p>\n
matter of the dispute are justified. Strong reliance is seen<\/p>\n
placed on the observations in paragraph 16 of the judgment<\/p>\n
of the Supreme Court Annexure P8 in the context of the<\/p>\n
legality of the CGM, Kerala Telecom Circle himself<\/p>\n
AR. N0. 44\/08
\n                             -26-<\/span><\/p>\n
functioning as an arbitrator over a dispute in which the CGM<\/p>\n
himself had already taken a decision against the claimant.<\/p>\n
     10.     One of the main planks on which the present<\/p>\n
arbitration request has been filed wherein virtually the<\/p>\n
prayer is for substitution of Sri.Haribabu the appointed<\/p>\n
arbitrator by Justice K.T.Thomas who was appointed as<\/p>\n
arbitrator by this court under Annexure P7 and approved by<\/p>\n
the Hon’ble Supreme Court under Annexure P8, is Annexure<\/p>\n
P8 judgment itself. I am unable to accept the submission of<\/p>\n
Sri.Ciccu Mukhopadyaya that Annexure P8 judgment itself<\/p>\n
would lead to a finding that the mandate of Sri.N.Haribabu,<\/p>\n
the appointed arbitrator stands terminated and that he will<\/p>\n
stand substituted by Justice K.T.Thomas as arbitrator. As<\/p>\n
rightly contended and could be discerned from Annexures P7<\/p>\n
and P8 the fact situation in AR.18\/06 in which Annexures P7<\/p>\n
and P8 judgment were given was entirely different from the<\/p>\n
situation in the instant A.R. In AR. 18\/06 the issue which<\/p>\n
AR. N0. 44\/08
\n                              -27-<\/span><\/p>\n
was essentially decided by this court and the Supreme Court<\/p>\n
was the issue as to whether the dispute between the parties<\/p>\n
regarding imposition of liquidated damages was an excepted<\/p>\n
matter or an arbitrable matter. This court and the Supreme<\/p>\n
Court under Annexures P7 and P8 originally decided that<\/p>\n
issue in favour of the applicant and held that the dispute<\/p>\n
regarding imposition of liquidated damages is not an<\/p>\n
excepted matter.     Incidentally the Supreme Court under<\/p>\n
Annexure P8 also held that the authority to decide on the<\/p>\n
liability or otherwise of the applicant to liquidated damages<\/p>\n
and also to quantification of liquidated damages cannot be<\/p>\n
conceded to the CGMT, a party to the contract. Two reasons<\/p>\n
have obviously weighed with the Supreme Court in taking<\/p>\n
such a view which was taken approving the earlier view of<\/p>\n
the Supreme Court in State of Karnataka v. Shree<\/p>\n
Rameshwara Rice Mills,<\/a> (1987) 2 SCC 160. The first reason<\/p>\n
was that the CGMT had already taken a decision in the<\/p>\n
AR. N0. 44\/08
\n                              -28-<\/span><\/p>\n
matter as was evident from his letter dated 25-4-2006 that<\/p>\n
the BSNL was right in imposing liquidated damages upon<\/p>\n
the applicant and therefore permitting such a person himself<\/p>\n
to be the arbitrator or adjudicator would not satisfy the test<\/p>\n
of impartiality and independence which is required under<\/p>\n
section 12 of the Arbitration and Conciliation Act. The other<\/p>\n
reason was that such an appointment will defeat the well<\/p>\n
settled notion under the principles of natural justice that a<\/p>\n
party cannot be a Judge in his own cause. The fact situation<\/p>\n
in the present case is different. Here unlike in AR. 18\/06,<\/p>\n
the appointing authority did not reject the applicant’s<\/p>\n
request for reference to arbitration. In terms of clause 20.1<\/p>\n
arbitrator was appointed. Sri.Haribabu unlike the CGMT is<\/p>\n
not a party to annexure P1.          Doubts are expressed<\/p>\n
regarding Sri.Haribabu’s impartiality and independence on<\/p>\n
the allegation that Sri.Haribabu is an employee of the first<\/p>\n
respondent organisation. Here again the contention of the<\/p>\n
AR. N0. 44\/08
\n                            -29-<\/span><\/p>\n
respondent that Sri.Haribabu is not a regular employee of<\/p>\n
the first respondent organization but is a class-I officer of<\/p>\n
the Telecom Department of Government of India presently<\/p>\n
on deputation to BSNL is not seen replied. I am therefore<\/p>\n
not prepared to accept the contention that Haribabu is an<\/p>\n
employee of the first respondent and in that way the second<\/p>\n
respondent is Haribabu’s superior officer and will have a<\/p>\n
bias towards the second respondent. The orders passed by<\/p>\n
Sri.Haribabu on the petitions successively filed by the<\/p>\n
applicant taking objection to the continuance of the<\/p>\n
arbitration proceedings by him on the ground of partiality<\/p>\n
and bias sufficiently indicates that Haribabu is mindful<\/p>\n
enough of the office he holds and the nature of functions he<\/p>\n
is expected to perform as an arbitrator appointed in terms of<\/p>\n
the Arbitration and Conciliation Act. On reading through<\/p>\n
the pleadings of the applicant it would appear that the<\/p>\n
applicant company is challenging the very mechanism for<\/p>\n
AR. N0. 44\/08
\n                             -30-<\/span><\/p>\n
appointment of an arbitrator under Annexure P1 – clause 20<\/p>\n
under section 3 thereof as void. It is also contended that at<\/p>\n
the time of execution of Annexure P1 the petitioner had no<\/p>\n
option but to accept the clause as it was not negotiable and<\/p>\n
formed part of the tender put out by the first respondent.<\/p>\n
According to me it is too late in the day for the applicant to<\/p>\n
contend like this especially after they had successfully<\/p>\n
invoked the very clause 20 before this court and the<\/p>\n
Supreme Court by proceedings which culminated in<\/p>\n
Annexures P7 and P8. The applicant is not an up country<\/p>\n
villager. The applicant on its own showing is receiving the<\/p>\n
best legal advice while entering into contracts and while<\/p>\n
dealing with parties to the contracts. Parties to contract<\/p>\n
should not be allowed to wriggle out of contracts easily.<\/p>\n
Annexure P1, the appointment under which cannot be<\/p>\n
disputed by the applicant, a party specifically incorporates<\/p>\n
that the CGMT has the power to appoint some person other<\/p>\n
AR. N0. 44\/08
\n                                -31-<\/span><\/p>\n
than himself as the arbitrator and that such appointment<\/p>\n
will not be objected to on the ground       interalia that the<\/p>\n
applicant is a Government servant. I am fairly convinced<\/p>\n
that the arbitrator Sri.Haribabu is a Government servant on<\/p>\n
deputation to the BSNL and hence qualified to be appointed<\/p>\n
as arbitrator in terms of clause 20.1 of section 3 of<\/p>\n
Annexure P1. It is too early for the petitioner to contend<\/p>\n
that Sri.Haribabu is biased in favour of BSNL and will not be<\/p>\n
able to discharge his adjudicatory functions as arbitrator in<\/p>\n
the true spirit of arbitration as envisaged by the statute as a<\/p>\n
speedy      and effective    alternative method    of  dispute<\/p>\n
resolution agreed to by the parties to the contract.<\/p>\n
Arbitrator has already commenced his proceedings and<\/p>\n
challenge was made apparently on his authority under<\/p>\n
section 13 of the Arbitration Act. The arbitrator entertained<\/p>\n
written submissions Annexure R2(b) by the applicant and<\/p>\n
Annexure R2(c) by the respondent and passed orders<\/p>\n
AR. N0. 44\/08
\n                             -32-<\/span><\/p>\n
Annexure P9 repelling the ground raised by the applicant in<\/p>\n
challenge of the authority of the arbitrator. Subsections (4)<\/p>\n
and (5) of section 13      of the Act will show that once<\/p>\n
challenge made against the arbitrator fails, the arbitrator is<\/p>\n
entitled to continue with the proceedings and pass his final<\/p>\n
award. If the applicant is aggrieved by the final award he is<\/p>\n
entitled to challenge the same on all grounds available to<\/p>\n
him under section 34 of the Arbitration Act. Annexure 13<\/p>\n
will show that the contention that the arbitrator has become<\/p>\n
de jure disqualified and his mandate has been automatically<\/p>\n
terminated was raised before the Arbitrator and was<\/p>\n
considered and decided by the arbitrator.       By filing the<\/p>\n
instant application under subsection (6) of section 11 the<\/p>\n
applicant seems to be challenging Annexures 9 and 14<\/p>\n
orders passed by the arbitrator before this court.     Those<\/p>\n
orders according to me, can be challenged by the applicant<\/p>\n
only in terms of section 34 of the Arbitration and<\/p>\n
AR. N0. 44\/08
\n                              -33-<\/span><\/p>\n
Conciliation Act by filing an application for setting aside the<\/p>\n
award when the same is passed.\n<\/p>\n
     The A.R. will stand dismissed. No costs. It is made<\/p>\n
clear that in the event of the award of the arbitrator<\/p>\n
becoming unfavourable to the applicant it will be open to<\/p>\n
the applicant to challenge the same on all grounds available<\/p>\n
to him. It is clarified that the applicant will have the liberty<\/p>\n
to challenge the award if necessary on the ground that the<\/p>\n
award is vitiated due to bias and partiality of the arbitrator<\/p>\n
demonstrable by valid materials.\n<\/p>\n<\/p>\n
                          (PIUS C.KURIAKOSE, JUDGE)
\nksv\/-\n<\/p>\n
AR. N0. 44\/08
\n                 -34-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Section 106 The Kerala Land … vs Bharat Sanchar Nigam Limited Section 106 the Kerala Land Reforms Act? 3) When did the defendant came into possession of the plaint schedule ? 4) Is the defendant liable to pay any amount to the plaintiff as arrears of licence fee ? If so, what […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-156155","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSection 106 The Kerala Land ... vs Bharat Sanchar Nigam Limited - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/section-106-the-kerala-land-vs-bharat-sanchar-nigam-limited\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Section 106 The Kerala Land ... vs Bharat Sanchar Nigam Limited - 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