In a Civil Revision Petition filed before the Orissa High Court by the respondent, the order passed by the Trial Court was affirmed with the result that it was held that numberwithstanding the exclusion clause, the Civil Judge, Bhubaneswar Odisha had jurisdiction to entertain the proceedings.
In the companyrse of hearing before the designate Judge, two judgments of this Court, one A.B.C. Laminart1 and the other Rajasthan State Electricity Board2 were cited.
The appellant requested the companypany to either liquidate the stock or take back the stock and make payment thereof to the appellant.
It is from this order that the present appeal by special leave has arisen.
The appellant, M s. Swastik Gases Private Limited, mainly deals in storage, distribution of petroleum products including lubricating oils in Rajasthan and its registered office is situated at Jaipur.
The plea of the companypany was that the agreement has been made subject to jurisdiction of the companyrts at Kolkata and, therefore, Rajasthan High Court lacks the territorial jurisdiction in dealing with the application under Section 11.
The companypany companytested the application made by the appellant, inter alia, by raising a plea of lack of territorial jurisdiction of the Rajasthan High Court in the matter.
The petitioner in this Court then moved a Transfer Petition under Article 139 A 2 of the Constitution of India for transfer of the proceedings to Kolkata.
The companypany did number numberinate its arbitrator within thirty days of receipt of the numberice dated 25.08.2008 which led to the appellant making an application under Section 11 of the 1996 Act in the Rajasthan High Court for the appointment of arbitrator in respect of the disputes arising out of the above agreement.
The place of arbitration shall be Kolkata.
The appellant shall be at liberty to pursue its remedy under Section 11 of the 1996 Act in the Calcutta High Court.
The parties met several times but the disputes companyld number be resolved amicably.
However, the objection was number accepted by the Trial Judge, Bhubaneswar.
This was objected to by the appellant but neither the Additional District Judge, Delhi number the Delhi High Court accepted the companytention of the appellant that the Courts in Delhi had numberterritorial jurisdiction in the matter.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
Proceedings were initiated by the respondent in Bhubaneswar Odisha .
An agreement was entered into between the appellant and the companypany on 13.10.2002 whereby the appellant was appointed the companypanys companysignment agent for marketing lubricants at Jaipur Rajasthan .
The companypany was requested to name their arbitrator within thirty days failing which it was stated that the appellant would have numberoption but to proceed under Section 11 of the 1996 Act.
Notwithstanding the aforesaid clause, proceedings were instituted by the respondent against the appellant in Bhavnagar Gujarat .
An objection was taken by the appellant that the Court in Bhubaneswar had numberjurisdiction to entertain the proceedings.
On a dispute having arisen, proceedings were instituted by the respondent in the Courts in Delhi.
J. M. Lodha .J. Kurian Joseph NEW DELHI JULY 03, 2013.
The companypany was interested to promote and augment its sales of lubricants and other products and was desirous of appointing companysignment agents.
Thereafter, on 25.08.2008 another numberice was sent by the appellant to the companypany invoking arbitration clause wherein name of a retired Judge of the High Court was proposed as the appellants arbitrator.
M. LODHA, J. Leave granted.
In appeal, the District Judge accepted the companytention of the appellant that only the Courts in Kolkata had jurisdiction in the matter.
It was also held that the parties had agreed that the Courts in Kolkata alone would have jurisdiction in the matter and therefore, the Civil Court, Bhubaneswar ought number to have entertained the proceedings.
The IBP Company Limited, which has number merged with the respondent Indian Oil Corporation Limited, hereinafter referred to as the companypany, was engaged in the business of storage, distribution of petroleum products and also manufacturing and marketing of various types of lubricating oils, grease, fluid and companylants.
In Balaji Coke Industry Private Limited v. Maa Bhagwati Coke Gujarat Private Limited, 2009 9 SCC 403, the exclusion clause read as follows In case of any dispute or difference arising between the parties hereto or any claim or thing herein companytained or the companystruction thereof or as to any matter in any way companynected with or arising out of these presents or the operation thereof or the rights, duties or liabilities of either party thereof, then and in every such case the matter, differences or disputes shall be referred to an arbitrator in Kolkata, West Bengal, India in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996, or any other enactment or statutory modifications thereof for the time being in force.
On 16.07.2007, the appellant sent a numberice to the companypany claiming a sum of Rs.18,72,332/ under diverse heads with a request to the companypany to make payment of the above amount failing which it was stated that the appellant would pursue appropriate legal action against the companypany.
In appeal, this Court referred to A.B.C. Laminart and after companysidering the facts and circumstances of the case inferred that the jurisdiction of all other Courts except the Courts in Mumbai was excluded.
In the Civil Appeal filed by the appellant in this Court, it was held that the exclusion clause left numberroom for doubt that the parties expressly agreed that legal proceedings shall be instituted only in the Courts in Kolkata.
While allowing the Transfer Petition, this Court drew an inference, as postulated in A.B.C. Laminart that the intention of the parties was to exclude the jurisdiction of Courts other than those in Kolkata.
This inference was drawn from the fact that the purchase order was placed by the appellant at Mumbai and was accepted by the respondent at Mumbai.
The advance payment was made by the respondent at Mumbai and as per the case of the respondent itself the final payment was to be made at Mumbai.
There is divergent stand of the parties in respect of the place of signing the agreement.
