Rajasthan High Court
M/S Mohit Polytech Pvt. Ltd vs Chief Engineer on 14 July, 2022
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Arbitration Application No. 44/2020
M/s Mohit Polytech Pvt. Ltd., F-139, Road No. 6, RIICO Industrial
Area, Bindayaka, Jaipur- 302012 (Rajasthan) Through Its
Director Hem Raj Sharma S/o Sh. Tolaram Sharma Aged 47 Yrs,
Resident Of Jaipur
----Petitioner
Versus
1. Chief Engineer, Minor Irrigation Department, Government
Of Uttar Pradesh, III Rd Floor, Jawahar Bhawan, Lucknow
(UP) - (E Mail- [email protected])
2. State Of UP Through Principal Secretary, Govt. Of UP,
Minor Irrigation Department, Lucknow (UP) - Email-
[email protected]
----Respondents
For Petitioner(s) : Mr. Narendra Singh Yadav
For Respondent(s) : Mr. Dheeraj Kumar Palia
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order
ORDER RESERVED ON :: 07/07/2022
ORDER PRONOUNCED ON :: 14/07/2022
1. The applicant has filed this arbitration application under
Section 11 of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as "the Act of 1996") for appointment of
an arbitrator.
2. The non-applicant has objected to the appointment of an
arbitrator on the ground that this Court does not have jurisdiction.
3. Counsel for the applicant has placed reliance on Aarka
Sports Management Pvt. Ltd. Versus Kalsi Buildcon Pvt. Ltd.:
(2 of 4) [ARBAP-44/2020]
ARB.P. No.662/2019 decided by the Delhi High Court on
06.07.2020.
4. Counsel for the non-applicant has placed reliance on
Brahmani River Pellets Limited Versus Kamachi Industries Limited:
Civil Appeal No.5850/2019 decided by the Apex Court on
25.07.2019. Counsel has also placed reliance on the decisions of
this Court in M/s. Royal Agro Services Versus Sei Tejas Private
Limited & Anr.: S.B. Arbitration Application No.104/2021 decided
on 31.03.2022 and Mohammad Shakir Versus HDB Financial
Services Limited: S.B. Arbitration Application No.138/2021
decided on 31.03.2022.
5. I have considered the contentions.
6. It would be appropriate to refer to the provisions of the
agreement for the purpose of deciding whether this Court has
jurisdiction to appoint an arbitrator. Clauses 16 and 17 of the
agreement read as under:
"16. ARBITRATIONS: Every dispute, difference or
question which may arise at any time between the
parties hereto or any persons claiming under them,
touching or arising out or in respect of this deed or the
subject matter thereof shall be referred to the
arbitration of Government of Uttar Pradesh, in Minor
Irrigation Department or any person nominated by
him. It will be no objection to any such appointment
that the arbitrator so appointed is Government
servant, that he had to deal with the matters to which
the contract relates and that in the course of his duties
as Government servant he had expressed views on all
or any of the matter in dispute or difference. In the
event of the arbitrator to whom the matter is originally
referred being transferred or vacating his office or
being unable to act for any reason Government of
Uttar Pradesh in Minor Irrigation Department, shall
either enter upon the reference himself or appoint
(3 of 4) [ARBAP-44/2020]
another person to act as arbitrator. Such person shall
be entitled to proceed with the reference from the
stage it was left by his predecessor. It is also a term of
this contract that no person other than a person
appointed as aforesaid should act as arbitrator and if
for any reason that is not possible the matter is not to
be referred to arbitration at all. In all cases where the
amount of the claim in dispute is Rs.50,000/- (Rupees
Fifty Thousand) and above the arbitrator shall give
reason for the award.
It is a term of the contract that the party
invoking the arbitration shall specify the dispute or
disputes to be referred to arbitration together with the
amount or amounts claimed in the respect of each
such dispute.
The arbitrator may from time to time with the
consent of the parties enlarge the time for making and
publishing the award.
17. JURISDICTION OF COURT: In case any dispute
has to be decided in court, then jurisdiction of the
court will be High Court Allahabad, Lucknow Bench,
Lucknow."
7. As per Clause 16, if any dispute, difference or question arises
between the parties, the same shall be referred to the arbitrator of
Government of Uttar Pradesh in Minor Irrigation Department or
any person nominated by him meaning thereby that the parties
intended that the arbitration proceedings would take place in Uttar
Pradesh.
8. The judgment in Aarka Sports Management Pvt. Ltd. (supra)
has no applicability to the facts of the present case as in the case
before the Delhi High Court none of the cause of action had arisen
in Delhi and the Delhi High Court held that it does not have
jurisdiction. In the present case, the office of the non-applicant is
situated in Uttar Pradesh and the goods were to be supplied in
Uttar Pradesh, hence, part of the cause of action arose in Uttar
(4 of 4) [ARBAP-44/2020]
Pradesh. In those facts and circumstances, if the parties have
opted for jurisdiction of High Court Allahabad, Lucknow Bench,
Lucknow, jurisdiction to this Court cannot be conferred as the
parties had clearly intended to exclude the jurisdiction of all
Courts except Courts at Uttar Pradesh, Lucknow. Since Clause 16
provided for arbitration by the Government of Uttar Pradesh, the
arbitration was bound to take place in Uttar Pradesh and
therefore, High Court Allahabad, Lucknow Bench, Lucknow, was
given the jurisdiction to take up any dispute. The intention of the
parties was very clear and only the High Court Allahabad, Lucknow
Bench, Lucknow, has power to appoint an arbitrator to adjudicate
the dispute between the parties.
9. This Court finds support from the judgment of Brahmani
River Pellets Limited (supra) and the orders passed by this Court
in Mohammad Shakir (supra) and M/s. Royal Agro Services
(supra). This Court lacks jurisdiction to entertain the application
under Section 11 of the Act of 1996 as the parties have
specifically subjected themselves to the jurisdiction of High Court
Allahabad, Lucknow Bench, Lucknow. The arbitration application
therefore deserves to be and is, accordingly, dismissed.
(PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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