Office Equipment vs The Pradeshiya Industrial And ...
1997 Latest Caselaw 329 Del

JUDGMENT

M.K. Sharma, J.

(1) This is a petition filed by the petitioners against the respondents under Sections 8,9 & 20 of the Arbitration Act praying for appointment of an Arbitrator preferably a retired Judge of this Court or any other person for adjudication of the disputes arising between the parties. It is stated that in response to the notice inviting tender for the work of "General Interior and Electrical Works in the office of respondent No. 1 at Lucknow, U.P.". The petitioner submitted his tender and finally his tender was accepted with certain conditions by way of counteroffer. In respect of execution of the aforesaid contract the disputes are stated to have arisen between the parties and accordingly, the petitioners have invoked clause2.53.0 of the contract between the parties. The said Clause 2.53.0 provides that in case of disputes or differences between the parties in respect of which the decision has not been final and conclusive in relation to or in connection with the contract would be referred for arbitration in the manner provided in the said clause. The petitioners by their letter dated 26.12.1990 requested the respondent No. 2 to act in terms of clause2.53.0 of the contract for reference of the disputes for arbitration. According to THE petitioners, by a letter dated 23.2.1991, the respondents declined to refer the matter to arbitration and accordingly the present petition has been filed in this Court for the aforesaid reliefs.

(2) The respondents filed a reply in the present petition Contending inter alia that this Court has no jurisdiction to entertain and/or to try and decide the presentpetition. According to the respondents the tender of the petitioner was accepted bythe respondents at respondent's office at Lucknow and that the contract was completed at Lucknow when the Letter of Acceptance dated 12.9.1989 of the respondents was issued, and therefore, the cause of action, if any, arose at Lucknow.It is stated that even otherwise the office of the respondents is situate at Lucknow and under such circumstances this Court has no jurisdiction to entertain the petition. the respondents further stated that in terms of Clause 2.13.2 no proceedings relating to the contract in question could be taken by the petitioners in any Court of law except at Lucknow. The Counsel appearing for the respondents submitted that even if it is assumed and decided that cause of action in the present case had arisen also at Delhi apart from Lucknow then also in terms of Clause 2.13.2 of the agreement between the parties the petitioners could not have filed the present case in a Court in Delhi in terms of the said clause which provides that no proceedings relating to this contract would be taken by the contractor in any Court except at Lucknow. The Counsel for the respondent drew my attention to the decisions of the Supreme Court in Abc Laminart Pvt. Ltd. v. A.P. Agencies; and Hakam Singh v. Gammon (India) Ltd., , and two un-reported decisions of this Court in Suit No. 1383 & I.A.6294/1993, M/s. Manorama Packaging (P) Ltd. v.The Prudishly Industrial b Investment Corporation; disposed of on 30.7.1993 and also the order dated 10.11.1996 passed by this Court in Suit No.317/1992 titled Satya Electricals v. PICUP.

(3) Having heard the learned Counsel appearing for the parties and also having considered the relevant clauses of the agreement I feel that the effect of Clause 2.13.2relating to jurisdiction of the Court to entertain a proceeding could be taken up for consideration at the first instance in view of the fact that if the contention as raised by the respondents with the support of the said Clause that the Court at Lucknow has only jurisdiction is upheld then it is not necessary to go into the question as to whether cause of action had also partly arisen at Delhi or not. Let me, therefore,Consider the issue as to whether in view of Clause 2.13 2 it could be said that no other Court except the Court at Lucknow has any jurisdiction to try and decide the proceedings out of the present contract and if the said contention is upheld the present petition is necessarily to be held to be not maintainable and the plaint filed in the present petition is to be returned to the petitioners in terms of the provisions of Order 7 Rule 11 of the Code of Civil Procedure.

(4) Before I proceed to examine the said issue, for convenience sake let me ex tract the said provisions: "2.13.0Laws2.13.1 The Contract shall be governed by the laws of State for the time being inforce with the same force and effect as if incorporated in full into the ContractDocuments. Where such laws, rules and regulations conflict with the Contractdocuments, the more stringent requirements as interpreted by the Engineer shall govern.2.13.2 Should such conflicts require changes in the Contract Documents, the Contractor shall promptly notify the Engineer. No proceedings relating to this contract shall be taken by the contractor in any Court of Law except atLucknow."

(5) The Counsel appearing for the petitioner made an effort to interpret the aforesaid provision contending inter alia that the same clause is applicable only when there is a conflict of any laws, rules and regulations with the Contract Documents and in view of such conflicts the contract requiring certain changes, then only the ouster clause as provided for in 2.13.2 would apply. However, on proper appreciation of the said clause I am unable to agree with the learned Counsel for the petitioners for it is specifically laid down in the said clause that no proceedings relating to this contract could be taken by the contractor in any Court of law except at Lucknow. The clause appears to me to be very positive and the same relates to any disputes arising out of the contract irrespective of the nature of the disputes between the parties. When any dispute relating to the contract arises between the parties any proceedings thereto will have to be taken by the contractor in a Court of law atLucknow. The aforesaid view that I have taken also finds support from the decision of the Supreme Court in Abc Laminarts Pvt. Ltd. case (supra) wherein it has been laid down that where there might be two or more competent Courts which could entertain a suit consequent upon a part of the cause of action having arisentherewithin, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves the agreement would bevalid. Applying the ratio of the aforesaid decision of the Supreme Court, even if IT is assumed that both Delhi and Lucknow Courts can entertain the present suit consequent upon the parts of the cause of action having arisen at both the places but since the parties to the contract have agreed to vest jurisdiction in the Court of Law at Lucknow the said agreement would be valid and binding on the parties.

(6) This Court in M/s. Manorama Packaging Pvt. Ltd. (supra) has also held that it is open to the parties to select one or more than one Court having jurisdiction and agree to give it exclusive jurisdiction for adjudication of disputes between theparties.

(7) Accordingly, on a proper appreciation of the aforesaid clause in the contract,in my considered view, in the instant case Delhi Courts have no jurisdiction and THE petitioner should have approached the Courts at Lucknow in terms of Clause 2.13.2.I, therefore, direct for return of the plaint to the petitioners in accordance with Order7 Rule 10(a) of the Code of Civil Procedure. In view of the above the plaint is returned to the plaintiffs for presentation to the Competent Court at Lucknow which would have the jurisdiction to try and entertain the suit. The interim order, if any, granted stands vacated. "The petition stands disposed of accordingly.