TMI Blog2001 (10) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... tral agreement under Reference as well as the subject matter of the Award arose within the jurisdiction of this Court. A part of the cause of action has arisen outside the jurisdiction of this Court. In these circumstances, by way of abundant precaution, petitioners have applied for leave under Clause 12 of the Letters Patent. This is without prejudice to their contention that leave is not required. The respondents have again opposed this application on the ground that no part of cause of action has arisen within the jurisdiction of this Court. It is their contention that the offer made by the petitioner was accepted at Gandhidham. A contract therefore, was entered into at Gandhidham or came into existence there. The goods were shipped from Kandla Port (Gujarat) and sent to France directly. In terms of the invoices, it was a stipulation that money was to be paid to the respondents bankers, State Bank of India overseas Branch, Ahmedabad (Gujarat). In fact for the goods shipped from Gujarat to France, the payment was credited in the respondent's account maintained with their bankers at Ahmedabad. The petitioners, it is contended, have their head office at Gandhidham and branch of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16, 17 and 20 shall not apply to the High Court in exercise of its Original Civil Jurisdiction. Clauses (a) to (e) of Section 16 are in respect of suits where the subject matter is immovable property. The only exception is Clause (f) which provides for recovery of movable property actually in distress or attachment. Section 17 again provides for filing of the suit to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts. Section 20 provides for cases in respect of other suits. Clause 12 of the amended Letters Patent of this Court reads as under: And We do further ordain that the said High Court of Judicature at Bombay, in the exercise of its Ordinary Original Civil Jurisdiction, shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It is no doubt true that even under the Act of 1940, under Section 2(c) Court meant Civil Court having jurisdiction to decide questions forming subject matter of the Reference, if the same had been subject matter of the suit. The question however is whether this Court would have jurisdiction to entertain the petition if it does not fall within Clause 12 of its amended Letters Patent. Clause 12 is the clause which confers jurisdiction on this Court in respect of the subject matter. The learned Single Judge after having held that Section 20 of the Code of Civil Procedure applies, has proceeded thereafter to hold that in respect of an application under Section 10 of the Act of 1940, Clause 12 would not apply. The explanation to Section 47 contemplates that the application must be made to the Court having jurisdiction over the subject matter of the Award. In other words, the Court must be the Civil Court, competent to have pecuniary jurisdiction, territorial jurisdiction and jurisdiction as to subject matter. Absence of any of these factors would exclude the principal Civil Court from exercising jurisdiction in respect of the subject matter. The jurisdiction in respect of the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue by this Court to a larger Bench of this Court. It is further made clear that it is only when there is conflict in the ratio decidendi as culled from the Judgments can it be said that there is conflict. If the ratio culled discloses that the Judgment was passed by ignoring provisions of the Act which confer jurisdiction then that ratio of that judgment cannot be said to be binding. Law of precedents is the ratio decidendi of the Judgment. Judicial consistency must be in respect thereof. A Judgment ignoring relevant provisions of law would not be a binding precedent. 4. We then come to the issue as to the meaning of the expression subject matter of the Award and whether that would mean also subject matter of the arbitration proceedings. This is important because under Section 2(e) the expression with reference to the expression Court means the subject matter of the arbitration. The subject matter of the arbitration would include contracts. The subject matter of an Award cannot include a contract as adjudication in respect of the claims under the contract has been done and has resulted into an award. The subject matter of the Award therefore, is liable to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter of the arbitration could be the foreign country. Merely because in the instant case, the contract was entered into in India cannot result in a different interpretation. The expression as the explanation itself permits forum hunting if that expression can be used. After considering all these provisions a similar view was taken in Arbitration Petition Lodg. No. 427 of 2001 in the case of Naval Gent Marline Ltd. v. Shivnath Rai Harnarain (I) Ltd. and Ors., decided on 5th July, 2001 in which at the ad interim stage, apart from other issues, the issue as to the meaning of the expression subject matter of the award was in issue and has been similarly answered. In the instant case, defendants do not have their office or carry on business within the jurisdiction of this Court. The Offices are either at Gandhidham or Ahmedabad. It is not averred in the petition that the respondents have any money within the jurisdiction of this Court. In these circumstances, to my mind in the absence of the subject matter of the Award being within the jurisdiction of this Court, this Court would have no jurisdiction to hear and decide this petition. 5. Lastly, even o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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