Calcutta High Court
Gainwell Commosales Private ... vs Ardern Maschinfabrik Private ... on 9 February, 2023
IN THE HIGH COURT AT CALCUTTA
ORIGINAL CIVIL JURISDICTION
(Original Side)
A.P. No. 436 of 2022
Reserved on: 19.01.2023
Pronounced on: 09.02.2023
Gainwell Commosales Private Limited (Tractors India Private Limited)
...Petitioner
-Vs-
Ardern Maschinfabrik Private Limited (Linhoff India Private Limited)
...Respondent
Present:-
Mr. Soumabha Ghose,
Mr. Soumalya Ganguli,
Ms. Tiana Bhattacharya, Advocates
... for the applicant
Mr. Balarko Sen,
Mr. Abirlal Ghosh, Advocates
... for the respondent
Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA,
CHIEF JUSTICE
Prakash Shrivastava, CJ:
1. This application has been filed under Section 11 of the
Arbitration and Conciliation Act, 1996 for appointment of sole
arbitrator to decide the dispute between the parties.
2. The plea of the applicant is that the respondent had placed
the work order dated 3rd of July, 2017 for 5 ton while loader CAT
950H on hire. In terms of the work order, hire charges for machinery
was to be paid on monthly basis within 30 days of receipt of invoice.
According to the applicant, the invoice was raised but the respondent
had failed and neglected to make payment in respect of the purchase
order amounting to Rs. 1,89,651/-. The notice dated 09.03.2022 in
terms of Section 21 of the Act was sent nominating Mr. Anuj Singh,
Advocate as sole arbitrator. The said notice was served upon the
respondent but no reply was received, hence the present application
was filed.
3. Learned Counsel for the respondent has raised an objection
that the work order contains the arbitration clause with the place of
arbitration as Mumbai and, therefore, this Court has no territorial
jurisdiction. Whereas submission of learned Counsel for the applicant
is that the tax invoices issued by the applicant makes the dispute
subject to Kolkata jurisdiction, therefore, this Court has territorial
jurisdiction.
4. I have heard learned Counsel for the parties and perused the
record.
5. It is not in dispute that the work order dated 03.07.2017
contains the following arbitration clause:
"ARBITRATION
All disputes/ differences whatsoever, which shall arise
between the parties hereto during the continuance of this
agreement or afterwards, touching the agreement or the
construction or application thereof or any clauses contained
on the rights, duties, liabilities or either party in connection
there with, shall be referred to a Sole Arbitrator to be
appointed with the consent of both the parties.
The place of Arbitration shall be at Mumbai and the
arbitrator appointed shall have held the office of judge of
any Indian High Court or Supreme Court of India.
In the event of the parties not being able to agree to a sole
Arbitrator within period of 15 days from being called upon
to agree such appointment then in that event event Linnhoff
India Pvt Ltd shall have the right to nominate such Sole
Arbitrator with similar qualification and his decision will be
binding on the parties.
Such Arbitration proceedings will be held in consonance
with the provisions of The Arbitration and Conciliation Act
1966 or any statutory modification or re-enactment thereof
for the time being in force."
6. The parties had acted upon the work order. Applicant had
issued the said tax invoice and at the bottom of the tax invoice
following was added as clause 7:
"7. All disputes are subject to Kolkata jurisdiction and are
to be referred to Arbitration."
7. The arbitration clause contains in the work order makes it
clear that the parties had agreed for the place of arbitration to be
Mumbai. It is also not in dispute that cause of action had also arisen at
Mumbai. There is no material on record indicating that there was any
deliberation between the parties to modify or substitute the arbitration
clause contained in the work order. Hence, mere unilateral stipulation
by the applicant making the dispute subject to Kolkata jurisdiction in
tax invoice, will not alter the main arbitration clause contained in the
work order.
8. Learned Counsel for the applicant has placed reliance upon
the judgment of the Hon'ble Supreme Court in the matter of BBR
(India) Private Limited vs S.P. Singla Constructions Private
Limited reported in AIR 2022 SC 2673 and in the matter of Quippo
Construction Equipment Limited vs. Janardan Nirman Private
Limited reported in (2020) 18 SCC 277, but both these judgments
stand on different footing. In the present case, in the work order, the
place of arbitration has already been fixed at Mumbai which in terms
of Section 20 of the Act is the jurisdictional seat and which can only
be altered after deliberation and with mutual agreement between the
parties. Hence, the objection of the respondent about territorial
jurisdiction of this Court is sustained and A.P. is dismissed.
(PRAKASH SHRIVASTAVA)
CHIEF JUSTICE
Kolkata
09.02.2023
___________
PA(SS)
(A.F.R./N.A.F.R.)
