TMI Blog2009 (7) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... es entered into an agreement that contained an ouster clause reading: The Courts of the place from where the acceptance of tender has been issued shall alone have jurisdiction to decide any dispute arising out of or in respect of the contract. ; and an arbitration clause providing: In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or in connection with this contract (except as to any matters the decision of which is specifically provided for by these or the special conditions) the same shall be referred to the sole arbitration of an officer in the Ministry of Law, appointed to be the arbitrator by the Director General of Supplies and Disposals. , and in the event of the Arbitrator dying, neglecting or refusing to act or resigning or being unable to act for any reason, or his award being set aside by the Court for any reason, shall be lawful for the Director General of Supplies and Disposals to appoint arbitrator in place of the outgoing arbitrator in the manner aforesaid. 3. Disputes and differences arose between the parties, and they were referred to arbitration by the Director General of Supplies and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get a fair opportunity of hearing. By a letter dated February 26, 2007, Annexure P-15 at p. 69, the Director of Supplies and Disposals communicated the order of the arbitrator dated January 17, 2007 to Heiza that sent a legal notice dated March 20, 2007, Annexure P-16 at p. 70, questioning the validity of the arbitral proceedings. In a reply letter dated March 30, 2007, Annexure P-17 at p. 73, the Director of Supplies and Disposals said that Heiza would get full opportunity to raise all objections before the arbitrator. Feeling aggrieved, Heiza and one of its directors took out this writ petition. 6. The respondents in the writ petition are: 1. Union of India, Ministry of Commerce and Industry, New Delhi, Secretary represented by Senior Central Government Advocate Ministry of Law and Justice having office of 11. Strand Road, Calcutta-700001 ; 2. The Director of Supplies and Disposals, having office at Jeevan Tara Building, 5, Sansad Marg, New Delhi-110001 ; 3. Assistant Director of Supplies For D.S. and G.D. having office at New G.G.O. Building, 5th/6th floor, S.W. Wing, New Marine Line, Mumbai-400020 ; and 4. Shri Suresh Chandra Additional Government Counsel Advisor/Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, and the writ petition has come up for final hearing. 9. Counsel for the second-fourth respondents has raised the question of territorial jurisdiction of this Court to entertain the writ petition. Relying on Oil and Natural Gas Commission v. Utpal Kumar Basu and others, (1994) 4 SCC 711 he has contended that since all the respondents have their respective offices outside the territorial limits of this Court and no part of the cause of action arose within the territories in relation to which this Court exercises jurisdiction under Article 226, this Court has no jurisdiction to entertain the writ petition. Counsel for the first respondent has said that in view of the provisions of section 16 of the Arbitration and Conciliation Act, 1996 validity of the reference should not be examined by the Writ Court. 10. Relying on a portion of a passage on p. 211 of Sarkar's the Code of Civil Procedure, (2006 Ed.) and the decisions in Tara Chand Boid v.Shikam Chand Bhora; AIR 1995 Ori 199 Kusum Ingots and Alloys Ltd. v. Union of India and another; 2004 (19) AIC 730 (SC):2004 (56) ALR 254: (2004) 6 SCC 254 Om Prakash Srivastava v. Union of India and another; (2006) 6 SCC 207:2006 (46) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken by the steering committee in New Delhi on January 27, 1993 and the contract was given to one C.I.M.M.C.O. N.I.C.C.O., contending that a part of the cause of action arose in Kolkata, sought orders restraining O.N.G.C. from awarding the contract to any other party and cancelling the contract, if awarded. It was held (para. 8) that none of the above-noted facts was an integral part of the cause of action. 13. In Kusum Ingots and Alloys Ltd. v. Union of India and another, 2004 (19) AIC 730 (SC):2004 (56) ALR 254: (2004) 6 SCC 254 it was held (para 10) that in view of the expressions used in Article 226 (2), even if a small fraction of the cause of action arises within the territorial limits of a High Court, then such High Court will have jurisdiction over the matter, and (para 18)) that facts which have nothing to do with the prayer made in the writ petition cannot be said to give rise to a cause of action sufficient to confer jurisdiction on the Court. 14. In Om Prakash Srivastava v. Union of India and another, 2006 (46) AIC 736 (SC): 2006 (56) ACC 93: 2006 (6) SCC 207 while ascertaining (paras 9-17) the meaning of the expression cause of action their Lordships reitera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the writ petition are whether the Director General of Supplies and Disposals possessed the power to appoint the arbitrator after the arbitrator appointed by him previously by his letter dated December 8, 2003 had terminated the arbitral proceedings by her order dated February 4, 2004, made under section 32 of the Arbitration and Conciliation Act, 1996; and whether the arbitrator appointed by the letter dated September 22, 2006 acquired any jurisdiction to proceed with the arbitral proceedings. 17. Since the question of very jurisdiction of this Court to entertain the writ petition has been raised, I do not think it is necessary for me to express any opinion on the merits of the controversies involved in the writ petition. In my opinion, appropriate opinions on them are to be expressed only if it is found that this Court has jurisdiction to entertain this writ petition and then it is held that even in the face of the provisions of section 16 of the Arbitration and Conciliation Act, 1996 the merits of the controversies can be examined, and the questions arising therefrom can be answered by the Writ Court. At present I am required only to answer the question of jurisdiction. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to which this Court exercises jurisdiction under Article 226 of the Constitution of India. 21. There is no merit in the case of the petitioners that the letter concerning acceptance of Heiza's tender was received by Heiza in Kolkata. As will appear from the letter dated January 17, 1991, Heiza's offer was accepted by the Director of Supplies and Disposals in Mumbai. The arguments concerning the ouster clause incorporated in the contract concerned and the decisions in Tara Chand Boid v. Shikam Chand Bhora, AIR 1995 Ori 199 and Ashok Kumar Saboo (H.U.F.) and another v. Hindusthan Paper Corporation Ltd. and others 2007 (3) CHN 533 relied on by Counsel for the petitioners are totally irrelevant to the question under examination. The facts of this case resemble the ones in Aligarh Muslim University and another v. Vinay Engineering Enterprises (P) Ltd. and another. (1994) 4 SCC 710 The first respondent's whereabouts, evident from the cause title, reveals the petitioners stunning ingenuity. There is no reason to say that the first respondent took any action or decision, or that it has a Kolkata office at the address given in the cause title. In my opinion, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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