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TMI Blog2006 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... MW capacity. The tender submitted by the first respondent was accepted, and seven purchase orders were issued by the appellant to the first respondent with annexures specifying the works and prices. As per Clause -11 of the agreement any difference in the interpretation of the terms of the agreement or dispute arising in executing the contract shall be resolved by reference to arbitrators under the provisions of the Arbitration and Conciliation Act, 1996. Clause-14 stipulates that for all practical purposes the jurisdiction of Hyderabad Courts will be final. There is no dispute that the first respondent completed the works covering all the purchase orders and a completion certificate was issued. 3. The first respondent filed Application No. 4149 of 2004 before this Court under Section 9 of the Act praying for a prohibitory order restraining the second respondent/Garnishee from paying to the appellant the amounts, and consequently restraining the appellant from receiving monies and directing the second respondent to deposit the amount to the credit of the above application. According to the first respondent, there was an outstanding amount of ₹ 60.50 lakhs payable by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a prima facie case has been made out for grant of interlocutory reliefs, and by order under appeal made absolute the prohibitory order restraining the Garnishee from making any payment to the appellant. 6. Mrs. Nalini Chidambaram, learned Senior Counsel appearing in support of the appeal has not disputed that the objection to jurisdiction was not raised before the learned single Judge, but she contends that the defect of jurisdiction would go to the root of the matter and strike at the very authority of the Court to pass the order. According to her such defect has always been treated as basic and fundamental, and an order passed by a Court having no jurisdiction is a nullity, and validity of such an order can be challenged at any stage even in execution or collateral proceedings. She submits that in view of Clause - 14 of the Purchase Order it is clearly understood and agreed by both the parties that the jurisdiction of the Court in Hyderabad will be final. Therefore, the Courts at Hyderabad alone will have jurisdiction and the first respondent cannot invoke the jurisdiction of this Court under the provisions of Section 9 of the Act for interim measures. She also contends tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and will be subjected to tremendous loss. 8. At the outset, we may mention that the agreements were signed by the first respondent at Chennai, goods and materials were sent from Chennai and payments were also made at Chennai. Therefore, a part of cause of action arises at Chennai within the jurisdiction of this Court. Thus, the Court at Madras is a competent Court to entertain the lis but for the ouster clause relied upon by the appellant. However, when the appellant had submitted themselves to the jurisdiction of this Court and went to trial on merits, they are clearly prevented from raising the question of jurisdiction, in view of the provisions of Section 21 of the Code of Civil Procedure. Section 21(1) of the Code of Civil Procedure runs thus:- No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. 9. In order that an objection to the place of suing may be entertained by an appellate or revisional Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confer jurisdiction upon a Court, otherwise incompetent to try the suit. But, Section 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognizable by the Courts under the Code may be waived under this Section. The waiver under Section 21 is limited to objections in the appellate and revisional Courts. But, Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 to 20 may be waived. Independently of this Section, the defendant may waive the objection and may be subsequently precluded from taking it, see Hira Lal Patni v. Sri Kali Nath [1962]2SCR747 . 12. It is also required to be noted that this is not a case of lack of territorial jurisdiction, but only a waiver of a contractual clause. If a party allows the trial Court to proceed to judgment without raising the objection as to the place of suing and takes a chance of verdict in his favour, he clearly waives the objection and will not subsequently be permitted to raise it. The present proceedings under Section 9 are in effect final proceedings. The objection to the jurisdiction though taken before the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le loss would be caused to the first respondent as they can be well compensated by the arbitrator, if ultimately it is found that they are entitled to the claim. Mr. Panchu, however, submitted that the power to grant interim relief cannot be controlled or restricted by invoking the provisions of Order 38 Rule 5 or Order 39 Rules 1 and 2 of the Code of Civil Procedure. He placed strong reliance on the decision of a Division Bench of this Court reported in Ganesh Benzoplast Ltd., Mumbai v. Sundaram Finance Ltd., Chennai 2002 2 CTC 238. We have carefully analysed the said judgment. The judgment merely states that when Section 9 of the Act does not specifically require any averment in any particular form as contemplated either under Order 38 Rule 5 of the CPC or under Section 18 of the Arbitration Act, 1940, there is no need to make such averment in the affidavit filed in support of the application seeking a prohibitory order. It is true that the provisions like Order 38 Rule 5 or Order 39 Rules 1 and 2 of the Code of Civil Procedure are not contained in the Arbitration and Conciliation Act, 1996 but its principles will be applicable as has been held by the Supreme Court in I.T.I. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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