Bombay High Court
Gayatri Prasad V. Dwivedi vs Getway Building on 4 October, 2012
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (L) NO.1280 OF 2012.
GAYATRI PRASAD V. DWIVEDI
S/o. Kt. Vishwanath Dwivedi,
R/at Village Mahugarhi,
PO Dramondganj, Halya,
District Mirzapur. ... Petitioner.
V/s.
MAHINDRA AND MAHINDRA
FINANCIAL SERVICES LTD.
Having its registered office at
Getway Building
Apollo Bunder, Mumbai 400 021. ... Respondent.
M.C.Shah i/b Deepak Pandey for petitioner.
None for Respondent.
CORAM : R.D.DHANUKA J.
DATED : 4th October, 2012.
P.C.
1. This petition has been filed for quashing and setting aside the
arbitration award dated 17th March, 2012 passed by the learned arbitrator.
2. It is not in dispute that petitioner had approached the respondent at its
branch situated at Baruhana Chauraha, Dist. Mirzapur for availing loan facility
for purchasing the vehicle.
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3. An agreement is entered into between the parties on 30th July, 2005 at
Delhi. The said agreement provided for an arbitration clause. Clauses 29 and 30
of the agreement read thus :
(29) Arbitration :
All disputes, differences and/or claim arising out of these presents or
in any way touching or concerning the same or as to constructions,
meaning or effect hereof or as to the right and list-titles of the parties
hereunder shall be settled by arbitration to be held in accordance with
the provision of the Arbitration and Conciliation Act, 1996 or any
statutory amendments thereof and shall be referred to the sole
arbitrator to be nominated by the Lender. In the event of death,
refusal, neglect, inability or incapability of a person so appointed to
act as an arbitrator, the Lender may appoint a new arbitrator. The
arbitrator shall not be required to give any reasons for the award and
the award of the arbitrator shall be final and binding on all parties
concerned. The arbitration proceeding shall be held in Mumbai.
(30) Jurisdiction :
It is agreed by and between the parties hereto that the Courts at
Mumbai alone shall have exclusive jurisdiction in respect of any
matter, claims or dispute arising out of or in any way relating to these
presents or to anything to be done under and pursuant to these
presents or of any clause or provision thereof, notwithstanding that
the whole or substantial part of the cause of action may not have
arisen in Mumbai.
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4. The learned Arbitrator has heard and declared the award at Mumbai.
It is not in dispute that the respondent had filed an application under Section 9 of
the Arbitration and Conciliation Act, 1996 (Suit No.193 of 2011) before the
District Court, Delhi. The petitioner had opposed that application filed before the
District Court, Delhi. By an order dated 28th April, 2011, the said proceedings
were allowed to be withdrawn. In para 11 of this petition it is averred it is
averred by the petitioner that the respondent appointed one Mr Sanjay Aggarwal
as sole arbitrator and the place of arbitration was fixed at Mumbai without there
being any cause of action taken place at Mumbai.
5. In para 15 of the Petition, it is averred that this Court has got the
territorial as well as pecuniary jurisdiction to try and decide the present Petition
in as much as the impugned Award has been passed by the learned arbitrator at
Mumbai and even the respondent's registered office is in Mumbai whereas no
cause of action has taken place in Mumbai and whatever cause of action has
taken place is either in Mirzapur or at Delhi.
6. The learned Counsel for the petitioner referring to Clause-30 of the
agreement submits that though no part of cause of action has arisen at Mumbai,
in view of Clause 30, Court at Mumbai shall alone have exclusive jurisdiction.
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7. Section 42 of the Arbitration And Conciliation Act, 1996 reads thus :
42. Jurisdiction :-
Notwithstanding anything contained elsewhere in this Part or in any
other law for the time being in force, where with respect to an arbitration
agreement any application under this Part has been made in a Court,
that Court alone shall have jurisdiction over the arbitral proceedings and
all subsequent applications arising out of that agreement and the
arbitral proceedings shall be made in that Court and in no other Court.
8. It is common ground that application under Section 9 was filed by the
respondent before the District Judge at Delhi. The loan was advanced by the
respondent to the petitioner not at Bombay. Agreement was executed at Delhi.
In view of Section 42, since the petition under Section 9 was filed admittedly
before the District Judge, Delhi and agreement was executed at Delhi, that Court
alone shall have jurisdiction over the arbitral proceedings and all subsequent
applications arising out of that agreement. Section 42 provides that the arbitral
proceedings shall be made in that Court and in no other Court.
9. In my view, therefore, this Court has no jurisdiction to entertain this
Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996. In
so far as reference to Clause 30 of the agreement is concerned, in view of the fact
that no part of cause of action has arisen in Mumbai in view of Section 28 of the
Contract Act, parties cannot confer the jurisdiction on the Court which does not
have jurisdiction.
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10. Since this Court has no jurisdiction to entertain this Petition, the
Petition is returned to the petitioner to enable him to file the same before the
competent Court. There shall be no order as to cost.
( R.D.DHANUKA, J.)
