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2015 (8) TMI 1453 - HC - Indian LawsPersonal Jurisdiction - whether this Court has personal jurisdiction over the Defendant is a question of fact which cannot be determined purely on the basis of whether the Defendant is residing outside the jurisdiction? - revocation of leave already granted. Held that:- In the present case the dispute is between the two Indian parties viz., the Plaintiff and the Second Defendant and therefore, this Court can exercise the jurisdiction. The Defendants are trying to confuse the issue, while considering the Application under Clause 12 of the Letters Patent by raising points under Section 45 of the Mediation and Conciliation Act. Both are to be considered in a different perspective at different stage and not to be confused as one having the controlling power over the other. In other words, foreign laws issues involved in this case is to be decided as questions of fact initiating a trial - Since the determination of the validity of the Arbitration Agreement involves number of questions of law, which has to be proved as questions of fact, the Plaintiff cannot be non-suited at this juncture. Revocation of leave is a drastic remedy, which can be granted only in exceptional circumstances. The crux of the issue in the main Suit is as to whether the Settlement Agreement dated 30.03.2013, in effect stipulates for resolving disputes between the parties to such Agreement through Arbitration proceedings and whether the recitals of such Agreement in an unequivocal terms and without any ambiguity make the parties for such reference with certainty. Certainly, consideration of such issue is possible only after conducting the trial, as it involves not only the interpretation of several clauses relating to the present dispute in all the three Agreements and also the appreciation of the actual intention of the parties while entering into those Agreements through their oral testimonies. Therefore, it requires a trial and consequently, the merits and contentions raised by both parties in respect of the disputed reference to the Arbitration under the Settlement Agreement dated 30.03.2013, cannot be gone into at this juncture. A clear or specific indication regarding the Arbitration Agreement between the parties must be made available in an Agreement itself. On the other hand, if such an Arbitration Agreement is to be inferred by reference from the earlier Agreements, such inference cannot be made as a matter of course automatically, as the burden is on the party who seeks for such inference, which he has to discharge and establish the same before the Court by adducing evidence in support of such claim. This Court finds that the Defendants have not made out a case for revoking the leave already granted - application dismissed.
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