TMI Blog2009 (9) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... r Court (Gujarat) in violation of such agreement. Thus transfer petition should be allowed. - 78 OF 2009 - - - Dated:- 9-9-2009 - ALTAMAS KABIR CYRIAC JOSEPH, JJ. JUDGMENT 1. This Transfer Petition under Article 139A(2) of the Constitution of India read with the relevant provisions of the Supreme Court Rules and Section 25 of the Code of Civil Procedure has been filed by Balaji Coke Industries Pvt. Ltd. for transfer of Arbitration Application No.1 of 2008, titled M/s Maa Bhagwati Coke (Guj) Pvt. Ltd. vs. Balaji Coke Industry Pvt. Ltd., pending in the Court of the Principal Senior Civil Judge at Bhavnagar (Gujarat) to the Calcutta High Court. 2. Briefly stated, the facts are that the Petitioner Company registered under the Companies Act and having its registered office at 12, Ho-Chi Minh Sarani, Flat 2B, Second Floor, Kolkata, is carrying on business in the trade of coking coal. The Respondent, which is engaged in the business of processing coking coal into hard coke, requires coking coal as raw material to be used in its processing unit for transformation into met coke (hard coke). On 29th April, 2005, the Petitioner Company entered into an agreement with the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly lying in a plot owned by the Respondent, but under the control and supervision of the Petitioner in Gujarat within the jurisdiction of the Bhavnagar Civil Courts. 5. The petitioner wrote back to the Respondent on 9th January, 2009, denying all the allegations and in particular denying the fact that it had received any sum of money from the Respondent or that the Respondent was entitled to receive any material, as alleged. A preliminary objection was also raised by the Petitioner to the appointment of Mr. Justice K.M. Mehta as the Sole Arbitrator in terms of Clause 11 of the Agreement dated 29th April, 2005, particularly when the said clause stipulates that the disputes shall be referred to an Arbitrator in Kolkata, West Bengal, India, and Mr. Justice K.M. Mehta was based in Ahmedabad. It was expressly stated by the Petitioner that the appointment of the learned Judge as Sole Arbitrator would be wholly contrary to the express terms of the arbitration clause. 6. According to the Petitioner, it was surprised to receive summons issued by the Principal Senior Civil Judge, Bhavnagar (Gujarat) to appear before the said Court on 17th January, 2009, in Arbitration Application No.1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where since the parties had agreed to the jurisdiction of a particular Court to entertain disputes arising out of an arbitration agreement between the parties, it was held that where two or more Courts have jurisdiction under the Code of Civil Procedure to try a suit or proceeding, an agreement between the parties that the disputes between them shall be tried in one of such Courts is not contrary to public policy nor does it contravene the provisions of Section 28 of the Indian Contract Act, 1872. It was also observed that the choice of Forum agreed to and accepted by the parties should normally be respected. Mr. Mitra also pointed out that in the aforesaid decision, the learned Judge had relied upon two decisions of this Court in (i) A.B.C. Laminart (P) Ltd. vs. A.P. Agencies [1989 (2) SCC 173]; and (ii) Hakam Singh vs. Gammon (India) Ltd. [AIR 1971 SC 740 = (1971) 1 SCC 286], wherein it was held that where there might be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agreed to vest jurisdiction in one of such Courts to try any dispute which might arise between themselves, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking into consideration the decisions of this Court in A.B.C. Laminart (P) Ltd. (supra) and Hakam Singh (supra), it could not be contended that the jurisdiction of the Bhavnagar Court stood ousted by either Clause 11 or Clause 14 of the High Seas Sale Agreement, which had provided that the sale contract would be subject to Kolkata jurisdiction. Mr. Malkan urged that there was, therefore, no ground to allow the Petitioner s prayer for transfer of the Arbitration Application No.1 of 2008, pending in the Court of Principal Civil Judge (Senior Division) at Bhavnagar to the Calcutta High Court. 14. Mr. Malkan also submitted that neither Clause 11 nor Clause 14 conferred exclusive jurisdiction on the Courts in Kolkata. Since the agreement did not use expressions such as alone , only and exclusive , which could be construed to have completely ousted the jurisdiction of the Courts in Gujarat, it could not be contended that the jurisdiction of the Court in Bhavnagar stood ousted from entertaining the respondent s application under Section 9 of the Arbitration and Conciliation Act, 1996. 15. The only question which falls for our consideration is whether, notwithstanding the mutual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of all the courts, which would otherwise have jurisdiction to decide the cause of action under the law, it could not be said that the parties had by their contract ousted the jurisdiction of the court. This Court went on to observe that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agree to vest jurisdiction in one such court to try the dispute which might arise between them, the agreement would be valid. The question also arose in R.S.D.V. Finance Co. Pvt. Ltd. vs. Shree Vallabh Glass Words Ltd., [(1993) 2 SCC 130], where an endorsement Subject to Anand (Gujarat) jurisdiction , was relied upon to contend that only Courts in Anand would have jurisdiction to entertain any dispute relating to such jurisdiction and the suit filed in Bombay on the ground that the cause of action arose in Bombay was not maintainable. In the said case, this Court held that since apart from the endorsement on the deposit receipt, there was no formal agreement between the parties, the said endorsement would not divest the courts in Bombay of their jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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