Calcutta High Court
M/S. Oscorp Industries Pvt. Ltd vs Union Of India And Ors on 9 October, 2023
O-9
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
AP/425/2023
M/S. OSCORP INDUSTRIES PVT. LTD.
VS
UNION OF INDIA AND ORS.
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 9th October, 2023.
Appearance:
Mr. Animesh Paul, Adv.
...for the petitioner
Mr. Rudraman Bhattacharya, Adv.
Mr. S.K. Tiwari, Adv.
...for the respondent
The Court:- The respondents' preliminary objection rests on the
jurisdiction of this Court to entertain the present application filed under
Section 11 of the 1996 Act. According to learned counsel appearing for the
respondents, Clause 64(1)(iii)(d) of the General Conditions of Contract
designates the place of arbitration to be within the geographical limit of the
Division of the Railway where the cause of action arises or Headquarters of the
concerned Railway or any other place with the written consent of both the
parties; hence, the place would be Hajipur, Bihar and the correct High Court
hence would be the Patna High Court.
It does not appear from any material disclosed by the parties that the
parties consented in writing to designate the place of arbitration to be at any
other place but as signified in Clause 64(1)(iii)(d) of the General Conditions of
Contract.
Although, learned counsel appearing for the petitioner seeks to rely on
Ravi Ranjan Developers Pvt. Ltd. vs. Aditya Kumar Chatterjee, 2022 SCC OnLine
SC 568, to urge that the "place" of arbitration is different from the "seat". This
contention is contrary to the line of decisions pronounced by the Supreme
Court. The first of the decisions is Bharat Aluminium Company vs. Kaiser
Aluminium, (2012) 9 SCC 552 followed by Enercon (India) Limited & Ors. vs.
Enercon GMBH & Anr., (2014) 5 SCC 1; Brahmani River Pellets Limited vs.
Kamachi Industries Limited, (2020) 5 SCC 462; Indus Mobile Distribution Private
Limited vs. Datawind Innovations Pvt. Ltd., 2017 (7) SCC 678; BGS SGS Soma
JV vs. NHPC Limited, (2020) 4 SCC 234; Hindustan Construction Company Ltd.
vs. NHPC Limited, 2020 (4) SCC 310 and lastly BBR (India) Pvt. Ltd. vs. S.P.
Singhla Constructions Pvt. Ltd., 2023 (1) SCC 693 which is a recent judgment of
the Supreme Court.
In all these decisions, the Supreme Court opined that the designated seat
of the arbitration would determine the courts which would have jurisdiction in
all matters for controlling or supervising the arbitration process. In BGS SGS
Soma JV, the Supreme Court held that where the venue is designated but not
the seat, the venue would be read and construed as the seat and the courts at
the seat would be conferred with exclusive jurisdiction to hear all disputes in
relation to the arbitration agreement. The Supreme Court also made a
distinction between the Courts as designated in the arbitration clause and
those designated under the governing clause of the agreement.
In BGS SGS Soma JV, the Supreme Court also referred to Bharat
Aluminium Company to say that Section 20(1) and (2) of the 1996 Act would
refer to the seat of arbitration while Section 20(3) would refer to the venue.
The consensus is that accrual of cause of action would have no relevance
to the seat of the arbitration agreement which may be at a neutral place.
Ravi Ranjan Developers relied on the facts where the parties did not
agree to Kolkata being the seat of arbitration. The Supreme Court specifically
was of the view that parties intended Kolkata to be the venue of arbitration. In
the present case the parties agreed that the "place" of arbitration would be in
Hajipur, Bihar as per the arbitration clause.
In the present case, the arbitration clause mentions "place" of arbitration
and clarifies it further by stating that the geographical limits of the Division of
the Railway where the cause of action arose or the Headquarters of the
concerned Railway. Even if the cause of action is seen as irrelevant for fixing
jurisdiction, the Headquarters of the concerned Railway is at Hajipur, Bihar.
Therefore, the Courts at the place, which would be construed as the seat,
would be conferred with exclusive jurisdiction to control and supervise the
arbitration.
Section 11(6) of the 1996 Act confers the power to appoint arbitrator/s
only on the Supreme Court or the High Court, as the case may be. Hence, the
Patna High Court would be the appropriate High Court where the petitioner
would have to go to with the prayer for appointment. .
The preliminary objection taken on behalf of the respondent is accepted
for the above reasons.
AP/425/2023 is accordingly dismissed as not being maintainable.
(MOUSHUMI BHATTACHARYA, J.)
T.O.
A.R.(C.R.)
