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TMI Blog2009 (1) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals filed by the respondent against the judgment of a learned Single Judge, these civil appeals have been preferred where special leave was granted. Since both these appeals involve similar questions of law and facts and arise out of the same impugned order, we propose to dispose of both these appeals by this common judgment and order. 2. The appellant Board which is having its base and operation at Jaipur placed an order for supply of 50 kiloliter of transformer oil with the respondent Company which is having its registered office and manufacturing unit at Calcutta vide purchase order No. RSEB/SE/Proc.I/TN-1261/U/Petrochemical/937 dated 23.9.1985 for an amount of Rs. 6,09,144/-. In terms of clause 5 of the said purchase order, the respondent was required to deposit security in the form of bank guarantee for an amount equivalent to 2 per cent of the contract value. In addition, the respondent was also required to furnish a performance guarantee equivalent to 5 per cent of the contract value for satisfactory performance and due execution of the said contract. Subsequent to the aforesaid purchase order, an agreement was also entered into between the parties on 16.10.1985 at Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion of the Arbitrator who may determine the amount thereof and direct the same to be borne and paid. (d) Work under the Contract shall, if reasonably possible, continue during the arbitration proceedings and no payment due or payable by the Purchaser shall be withheld on account of such proceedings. In the second purchase order which is dated 02.12.1987, in addition to the above mentioned clauses, a clause was also incorporated which is with respect to the jurisdiction of the Court in case of disputes: DISPUTES All disputes, differences or questions whatever which may arise between the Purchaser and the Supplier upon or in relation with or in connection with the contract shall be deemed to have arisen at Jaipur (Rajasthan) and no Court other than the Court at Jaipur (Rajasthan) shall have jurisdiction to entertain or try the same. A clause, namely, Clause 7 was also incorporated in the bank guarantee which is with respect to the jurisdiction of Courts for adjudication of disputes arising under the bank guarantee. The said clause reads as under:- All disputes arising in the said Bank Guarantee between the Bank and the Board or between the supplier or the Board p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to try and decide the proceedings, the said Calcutta Court would be entitled to exercise jurisdiction and that all subsequent applications would be made to that Court only as first application was made in that Court by the respondent. Consequently, the appeals were allowed and the judgment of the learned Single Judge was set aside. The matter was directed to be listed before the Single Judge for passing consequential orders in terms of the directions issued by the Division Bench. 11.Contentions that were raised on behalf of the appellant in the present appeals before us, revolves around the issue of territorial jurisdiction of the Calcutta High Court in entertaining the said petition under Section 20 of the Act. 12.According to the appellant, the Calcutta High Court would have no jurisdiction to entertain and decide the aforesaid petition under Section 20 of the Act and that it is only the Court at Jaipur which would have territorial jurisdiction to entertain and decide any such petition filed by any of the party, in view of the specific intention of the parties as disclosed from the stipulations in the purchase order and agreements entered into between the parties. 13.The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies cannot agree upon an arbitrator, to an arbitrator appointed by the Court. (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable. 41. Procedure and powers of Court. - Subject to the provisions of this Act and of rules made there under- (a) the provisions of - the Code of Civil Procedure, 1908, (5 of 1908.) shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court: Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters. 15.There is no dispute with regard to the fact that the parties entered into various agreements which are referred to above. The said agreements admittedly also contained forum selection clauses between the parties whereby and wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like alone , only , exclusive and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expressio unius est exclusio alterius expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. 18. The said decision also referred to and relied upon an earlier decision of this Court in Hakam Singh v. M/s. Gammon (India) Ltd. [1971 (1) SCC 286]. The said decision was rendered in the light of facts of a similar contract where clause 12 of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otions of contract would bind parties and unless absence of ad idem can be shown courts should avoid exercising jurisdiction. While arriving at the said finding this Court followed the ratio laid down in A.B.C. Laminart (P) Ltd. (supra). 21.The aforesaid legal proposition settled by this Court in respect of territorial jurisdiction and applicability of Section 20 of the Code to Arbitration Act is clear, unambiguous and explicit. The said position is binding on both the parties who were contesting the present proceeding. Both the parties with their open eyes entered into the aforesaid purchase order and agreements thereon which categorically provide that all disputes arising between the parties out of the agreements would be adjudicated upon and decided through the process of arbitration and that no court other than the court at Jaipur shall have jurisdiction to entertain or try the same. In both the agreements in clause 30 of General Conditions of the Contract it was specifically mentioned that the contract shall for all purposes be construed according to the laws of India and subject to jurisdiction of only at Jaipur in Rajasthan Courts only and in addition in one of the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It is clear from the language used therein that where in any application has been made in a court, competent to entertain, in that case that court alone shall have jurisdiction. The requirement is not that the application should be allowed. Since in the instant case admittedly an application under Section 20 has been made, which is an application in a reference, Calcutta High Court will have jurisdiction. The said findings were rendered by the Division Bench upsetting the findings of the learned Single Judge who had held that the non-obstantive clause appearing in sub-Section (4) of Section 31 would not be attracted in the present case where the parties by an agreement had agreed to a particular forum having jurisdiction over the dispute between the parties for adjudication. 25. Section 20 of the Code will apply in respect of deciding the issue with regard to territorial jurisdiction of a court in respect of a matter relating to arbitration also, for in Hakam Singh (supra), it was held that the jurisdiction of the court under the Act to entertain the proceeding for filing an Award was governed by the provisions of the Code. We also at this stage may appropriately refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wrong finding to the effect that by virtue of the aforesaid provision of Section 31(4) the Calcutta High Court would have jurisdiction in the matter. 29.In view of the aforesaid findings and conclusions arrived at by us holding that it is only the Court at Jaipur which will have jurisdiction to try and decide the arbitration proceedings between the parties and also entertain a petition of the aforesaid nature i.e. Section 20 of the Act, we set aside and quash the judgment and order of the Division Bench of the Calcutta High Court. Both the appeals are allowed to the aforesaid extent. The Registry of the Calcutta High Court is directed to transfer the petition filed by the respondent under Section 20 of the Act alongwith all the records to the District Judge, Jaipur, as expeditiously as possible but not latter than four weeks from the date of receipt of this order. The District Judge, Jaipur on receipt of the said petition alongwith the transmitted records shall allocate it to the competent and appropriate Court, which would thereafter issue Notice to both the parties. The concerned Court shall thereafter deal with the matter in accordance with law. 30.The registry of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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