Bombay High Court
M/S. N. .S. Automotive Spares Pvt. Ltd., ... vs M/S. Ashok Leyland Limited, Chennai, ... on 30 June, 2016
Author: Z.A.Haq
Bench: Z.A.Haq
1 mca1069.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISCELLANEOUS CIVIL APPLICATION NO.1069/2015
M/s. S.N. Automotive Spares Pvt. Ltd.,
A Company incorporated under the Companies
Act, 1956, having its registered office at Mount
Road Extension, Sadar, Nagpur 440 001
through its Director Shri Bharat Sheth. ..Applicant.
..VS..
1. M/s. Ashok Leyland Limited,
having its registered office at
No.1, Sardar Patel Road, Guindy,
Chennai - 600 032,
through its Chairman/Director.
2. M/s. Ashok Leyland Limited,
having its registered office at 2nd
Floor, 317, Ravindranath Tagore
Marg, Civil Lines, Nagpur - 01. ..Non-applicants.
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Shri Shyam Dewani, Advocate for the applicant.
Shri H.V. Thakur, Advocate for the non-applicants.
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CORAM : Z.A.HAQ, J.
DATED : 30.6.2016.
ORAL JUDGMENT
1. Heard Shri Shyam Dewani, Advocate for the applicant and Shri V.R. Thakur, Advocate for the non-applicants.
2. The applicant has filed this application under Section 11 of the Arbitration and Conciliation Act, 1996 praying that an Arbitrator be appointed to ::: Uploaded on - 12/07/2016 ::: Downloaded on - 30/07/2016 07:38:40 ::: 2 mca1069.15 resolve the dispute between the parties. The applicant relies on Clause 30 of the Parts Dealer Agreement between the applicant and the non-applicant No.1.
According to the applicant, if any difference/dispute arises between the parties, it is required to be resolved by mutual negotiations and if the dispute is still unresolved, it is required to be resolved by arbitration under the Indian Arbitration and Conciliation Act, 1996.
Shri H.V. Thakur, learned Advocate for the non-applicants has raised preliminary objection on two counts :
(i) That the alleged agreement on which the applicant relies is not signed by the non-applicant No.2,
(ii) That as per Clause 29 of the Parts Dealer Agreement, the dispute between the parties is required to be referred to the Court at Chennai and, therefore, application under Section 11 of the Arbitration and Conciliation Act, 1996 will also have to be filed at Chennai.
The learned Advocate for the non-applicants has relied on the judgment given in the case of Hakam Singh V/s. M/s. Gammon (India) Ltd. reported in 1971(1) SCC 286 and the judgment given in the case of Swastik Gases Private Limited V/s.
Indian Oil corporation Limited reported in (2013) 9 SCC 32 to fortify the submission that as per Clause 29 of the Parts Dealer Agreement, this Court does not have the jurisdiction to entertain the present application as the jurisdiction of all other Courts except the Court at Chennai are ousted as per the agreement between the parties.
Clause 29 and 30 of the Parts Dealer Agreement read as follows:
"29) Law of Agreement :
This agreement shall be construed as having been executed at Chennai and it is agreed that the rights and liabilities of the parties hereto, their heirs, executors, administrators, legal representatives, successors and assigns in case a dispute arises shall be referred to the courts at Chennai and shall be construed according to that law for the time ::: Uploaded on - 12/07/2016 ::: Downloaded on - 30/07/2016 07:38:40 :::
3 mca1069.15 being in force in Chennai and shall be heard and determined in Chennai. And it is further agreed that in any event, service of any process shall be effective against AL only if made at the Registered Office of Al at Chennai.
Judicial jurisdiction : The parties subject to this agreement shall subject themselves to the jurisdiction of Courts in Chennai alone.
30) Arbitration In the event of differences/disputes, the parties will resolve the same by mutual negotiations. Any unresolved disputes shall be referred for arbitration under Indian Arbitration & Conciliation Act, 1996 to a suitably appointed arbitrator under mutual consent. The decision of the arbitrator will be final and binding on both parties and the venue of such arbitration shall be in Chennai. The language shall be English."
Considering the settled proposition as laid down in the judgment given in the case of Hakam Singh V/s. M/s. Gammon (India) Ltd. (cited supra) and reiterated in the judgment given in the case of Swastik Gases Private Limited V/s. Indian Oil corporation Limited (cited supra), it has to be held that if the cause of action arises at different places and Courts at different places have jurisdiction to entertain and adjudicate the disputes, the parties can oust the jurisdiction of some Courts by agreement and agree to initiate the proceedings at a particular place where also, the cause of action arises. Though the non-applicants did not contend that there is no cause of action at Nagpur to enable the applicant to move application before this Court, even if the contention of the applicant is accepted that cause of action has arisen at Nagpur, in view of Clause 29 of the Parts Dealer Agreement, this application cannot be entertained by this Court.
The learned Advocate for the applicant urged that the non-applicants are having registered central office and Regional Office at Nagpur that the Parts Dealer Agreement was sent to the applicant by the non-applicants from their office at ::: Uploaded on - 12/07/2016 ::: Downloaded on - 30/07/2016 07:38:40 ::: 4 mca1069.15 Nagpur, that the dealings and business transactions have taken place at Nagpur from the offices of the non-applicants at Nagpur and all the communications sent by the non-applicants show that they are sent from the office of the non-applicants at Nagpur. It is argued that the cause of action has arisen at Nagpur only and nothing has happened at Chennai and, therefore, only this Court has the jurisdiction to entertain and decide the present application and it cannot be said that the applicant can approach the Court at Chennai. Relying on the judgment given in the case of Patel Roadways Limited, Bombay V/s. Prasad Trading Company reported in (1991) 4 SCC 270 it is submitted that the Court at Chennai will not have jurisdiction even if the parties agree to it as the parties cannot confer jurisdiction on Court which does not have the jurisdiction to entertain and decide the matter.
The learned Advocate for the applicant has submitted that Clause 29 of the Parts Dealer Agreement is against public policy and has to be overlooked. To support this submission, the judgment given in the case of Shin Satellite Public Co.
Ltd. V/s. M/s. Jain Studios Ltd. reported in AIR 2006 SC 963 is relied upon.
The submission made on behalf of the applicant that the cause of action or part of cause of action has not arisen at Chennai and, therefore, Clause 29 of the Parts Dealer Agreement is void and bad in law as the parties by agreement cannot confer jurisdiction on the Court at Chennai, cannot be accepted. The applicant is relying on Clause 30 of the Parts Dealer Agreement to contend that the dispute between the parties is required to be resolved by an Arbitrator. It would not be appropriate for this Court to overlook Clause 29 of the same Parts Dealer Agreement.
In view of the above, it has to be held that the application filed by the applicant is not maintainable at Nagpur. The application is rejected with liberty to ::: Uploaded on - 12/07/2016 ::: Downloaded on - 30/07/2016 07:38:40 ::: 5 mca1069.15 the applicant to file appropriate proceedings at Chennai, if so advised. The parties to bear their own costs.
JUDGE Tambaskar.
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