Neutral Citation No. - 2025:AHC:13173 Court No. - 21 Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 73 of 2023 Applicant :- Sardar Manjit Singh Opposite Party :- M/S Manocha Sales Counsel for Applicant :- Vinayak Mithal Counsel for Opposite Party :- Naman Agarwal,Nipun Singh Hon'ble Manoj Kumar Gupta,J. 1. By order dated 23.8.2024, the Court proposed name of a sole arbitrator for adjudication of dispute and differences between the parties arising out of a tenancy agreement. In the order, it is noted that under Clause 24 of the lease deed, it was stipulated that the differences between the parties thereunder would be referred to an arbitral tribunal to be appointed with mutual consent. It is also noted in the said order that the applicant instituted a suit (SCC Suit No. 25/2020) before Judge, Small Cases for eviction of the opposite party wherein the opposite party raised an objection that the suit was not maintainable in view of the arbitration agreement between the parties. The said objection was upheld and the suit was dismissed, leaving it open to the parties to avail the remedy of arbitration. 2. Now the opposite party has filed a recall application on the ground that the dispute between the parties is not arbitrable as it is covered by U.P. Act No. 16 of 2021 and therefore the order proposing the name of the arbitrator should be recalled. 3. Sri Vinayak Mittal, learned counsel for the applicant, on the other hand, submits that the opposite party itself raised the plea of dispute being arbitrable before the trial court and consequently, the suit filed by the applicant was dismissed. Now, it is not open to the opposite party to raise the plea of non-arbitrability. He further submits that the question relating to jurisdiction can be decided by the arbitral tribunal under Section 16 of the Arbitration and Conciliation Act, 1996. 4. I find sufficient force in the submission of learned counsel for the applicant. Concededly, the opposite party raised plea of availability of remedy before the arbitral tribunal to resolve the dispute between them, arising out of the tenancy agreement and upon which the suit came to be dismissed. Moreover, as rightly pointed out, the issue relating to jurisdiction can be raised before the arbitrator under Section 16 of the Act. As such, I find no merit in the recall application. It is accordingly rejected, leaving it open to the opposite party to raise the plea of jurisdiction before the arbitral tribunal. 5. The proposed arbitrator has given his consent and has made disclosures in terms of Section 11(8). 6. Accordingly, Sri Ashok Kumar Rastogi (Retd. District and Sessions Judge) is appointed as arbitrator to adjudicate the disputes and differences between the parties, leaving it open to the opposite party to raise the plea of jurisdiction, if so advised, before the arbitrator and in which event, no observation made herein would come in the way of the arbitral tribunal in deciding the issue. 7. The arbitrator shall be entitled to fees and expenses as per IVth Schedule of the Act. 8. The application stands disposed of accordingly. (Manoj Kumar Gupta, J.) Order Date :- 24.1.2025 Jaideep/- Digitally signed by :- JAIDEEP BANERJEE High Court of Judicature at Allahabad