Supreme Court - Daily Orders
B.E.Simoes Von Staraburg ... vs M/S Chattisgarh Investment Ltd. on 16 September, 2014
Bench: Kurian Joseph, Rohinton Fali Nariman
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8933 OF 2014
(arising out of S.L.P. (Civil) No. 7589 of 2011)
B.E.SIMOES VON STARABURG NIEDENTHAL Appellant(s)
& ANR
VERSUS
M/S CHHATTISGARH INVESTMENT LTD. Respondent(s)
WITH
CIVIL APPEAL NO. 8934 OF 2014
(arising out of S.L.P.(Civil) No. 7836 of 2011)
CIVIL APPEAL NO. 8946 OF 2014
(arising out of S.L.P. (Civil) No. 8011 of 2011)
O R D E R
S.L.P. (Civil) No. 7589 of 2011
Leave granted.
2. Admittedly, a Raising Agreement with regard to
mines located in Goa was entered between the
parties at Raipur on 09.04.2007. The first
Signature Not Verified
appellant operates mines in Goa. Under the Raising
Digitally signed by
Rajesh Dham
Agreement, the respondent is exclusive purchaser of
Date: 2014.09.20
11:47:33 IST
Reason:
the ore from the mines of the appellants. The
disputes having arisen between the parties, the
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respondent (hereinafter referred to as “CIL”) made
an application under Section 9 of the Arbitration
and Conciliation Act, 1996 (for short, '1996 Act')
for interim protection before the Court of District
Judge, Raipur. The present appellants (hereinafter
referred to as “SIMOES”), who were respondents in
the application, raised the objection, by way of an
application, about the jurisdiction of the District
Judge, Raipur. It was submitted by the SIMOES that
the District Judge, Raipur has no jurisdiction for
three reasons: (i) the subject mines are located in
Goa, (ii) the agreement was also made in Goa, and
(iii) the place of residence of respondent No. 2 is
Goa. CIL, on the other hand, responded to the
SIMOES objection by stating that although the
subject mines are situated in Goa, the working of
the company is in Raipur, the cause of action also
arose in Raipur and, therefore, the District Judge,
Raipur also has jurisdiction to try and entertain
the matter.
3. The District Judge, Raipur elaborately noted
the arguments of the parties, but curiously first
observed that it would be possible to decide the
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issue of jurisdiction only when SIMOES filed reply
to the petition under Section 9 of the 1996 Act and
then dismissed the application whereby SIMOES
raised the objection of lack of jurisdiction.
4. Aggrieved by the order dated 06.10.2010 passed
by the District Judge, Raipur, SIMOES preferred
appeal before the Chhattisgarh High Court. The High
Court did not interfere with the order of the
District Judge, Raipur and observed that the
question of jurisdiction could only be decided by
the District Judge after the reply was filed to the
application under Section 9 of the 1996 Act. The
High Court observed that the District Judge shall
decide the application under Section 9 and so also
the objection regarding territorial jurisdiction
afresh within thirty days from the date of the
filing of reply and after hearing the parties.
5. We have heard Mr. Rafiq A. Dada, learned
senior counsel for the appellants (SIMOES), and Mr.
Nikhilesh Krishnan, learned counsel for the
respondent (CIL).
6. Clause 13 of the Raising Agreement dated
09.04.2007 reads as under :-
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“The Courts at Goa shall have exclusive
jurisdiction.”
7. It is not disputed by the learned counsel for
CIL that Goa courts have jurisdiction, but his
submission is that Raipur court also has
jurisdiction and since the question of jurisdiction
has not been finally decided by the District Judge,
Raipur, the District Judge, Raipur must be allowed
to decide the question of its own jurisdiction. In
support of his arguments, learned counsel for CIL
relies upon decisions of this Court in Michael
Golodetz and others Vs. Serajuddin and Co.1 and
Bhatia Co-operative Housing Society Ltd. Vs. D.C.
Patel2.
8. On the other hand, Mr. Rafiq A. Dada, learned
senior counsel for SIMOES, submits that the parties
have agreed that Goa courts shall have exclusive
jurisdiction and, thus, by their agreement the
jurisdiction of the Raipur court has been ousted.
He submits that in view of the jurisdiction clause
1. AIR 1963 SC 1044
2. [1953] SCR 185
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in the agreement, now the Raipur court has no
jurisdiction at all. In support of his arguments,
learned senior counsel for the appellants, relies
upon two judgments of this Court – (one), Swastik
Gases Private Limited Vs. Indian Oil Corporation
Limited3 and (two), State of West Bengal & Ors. Vs.
Associated Contractors (Civil Appeal No. 6691 of
2005) and other connected matter (Civil Appeal No.
4808 of 2013) decided on 10.09.2014.
9. In Swastik Gases Private Limited3, the 3-Judge
Bench of this Court had an occasion to consider the
issue as to whether in a contract that specifies
the jurisdiction of particular courts at a
particular place and such courts have jurisdiction
to deal with the matter, whether the parties had
intended to exclude the other courts? In Swastik
Gases Private Limited3, in the lead judgment, one of
us (R.M. Lodha, J., as he then was) referred to the
earlier decisions of this Court in Hakam Singh Vs.
M/s Gammon (India) Ltd. (1971) 1 SCC 286; Globe
Transport Corporation Vs. Triveni Engineering Works
and Another, (1983) 4 SCC 707; Angile Insulations
3. (2013) 9 SCC 32
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Vs. Davy Ashmore India Ltd. and Another, (1995) 4
SCC 153; New Moga Transport Co., through its
Proprietor Krishanlal Jhanwar Vs. United India
Insurance Co. Ltd. and others, (2004) 4 SCC 677;
Shree Subhlaxmi Fabrics (P) Ltd. Vs. Chand Mal
Baradia and Others, (2005) 10 SCC 704; Rajasthan
State Electricity Board Vs. Universal Petrol
Chemicals Limited, (2009) 3 SCC 107; Balaji Coke
Industry Private Limited Vs. Maa Bhagwati Coke
Gujarat Private Limited, (2009) 9 SCC 403; A.V.M.
Sales Corporation Vs. Anuradha Chemicals Private
Limited, (2012) 2 SCC 315, and culled out the
legal position in para 32 of the report as under:-
“32. ... It is a fact that whilst providing
for jurisdiction clause in the agreement
the words like “alone”, “only”, “exclusive”
or “exclusive jurisdiction” have not been
used but this, in our view, is not decisive
and does not make any material difference.
The intention of the parties - by having
Clause 18 in the agreement – is clear and
unambiguous that the courts at Kolkata
shall have jurisdiction which means that
the courts at Kolkata alone shall have
jurisdiction. It is so because for
construction of jurisdiction clause, like
Clause 18 in the agreement, the maxim
expressio unius est exclusio alterius comes
into play as there is nothing to indicate to
the contrary. This legal maxim means that
expression of one is the exclusion of
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another. By making a provision that the
agreement is subject to the jurisdiction of
the courts at Kolkata, the parties have
impliedly excluded the jurisdiction of other
courts. Where the contract specifies the
jurisdiction of the courts at a particular
place and such courts have jurisdiction to
deal with the matter, we think that an
inference may be drawn that parties
intended to exclude all other courts. A
clause like this is not hit by Section 23 of
the Contract Act at all. Such clause is
neither forbidden by law nor it is against
the public policy. It does not offend
Section 28 of the Contract Act in any
manner.”
Madan B. Lokur, J., while writing separate
judgment, concurred with the above legal position.
10. In a very recent judgment delivered
on 10.09.2014 in Civil Appeal No. 6691 of 2005,
State of West Bengal & Ors. Vs. Associated
Contractors, the 3-Judge Bench (speaking through
one of us, Rohinton Fali Nariman, J.), noticing
the decisions of this Court in FCI represented by
Managing Director & Anr. Vs. A.M. Ahmed & Co.
through MD & Anr., (2001) 10 SCC 532 (para 6);
Neycer India Ltd. Vs. GNB Ceramics Ltd., (2002) 9
SCC 489 (para 3) with reference to Section 31(4) of
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the Arbitration Act, 1940 and the decisions of this
Court in Jatinder Nath Vs. Chopra Land Developers
Pvt. Ltd., (2007) 11 SCC 453 (para 9); Rajasthan
State Electrical Board Vs. Universal Petrol
Chemical Limited, (2009) 3 SCC 107 (paras 33 to 36)
and Swastik Gases (P) Ltd. Vs. Indian Oil
Corporation, 2013 (9) SCC 32 (para 32), held that
where the agreement between the parties restricted
jurisdiction to only one particular court, that
court alone would have jurisdiction as neither
Section 31(4) nor Section 42 (of the 1996 Act)
contains a non-obstante clause wiping out a
contrary agreement between the parties. On the
basis of the above decisions, it was further held
that applications preferred to courts outside the
exclusive court agreed to by parties would also be
without jurisdiction.
11. In light of the legal position exposited
in Swastik Gases Private Limited3 and Associated
Contractors (supra) and having regard to Clause 13
of the agreement, as noted above, the jurisdiction
of the District Judge, Raipur is ousted and,
therefore, he cannot be said to have any
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jurisdiction in dealing with the matter. The only
competent court of jurisdiction is the court at
Goa.
12. In what we have discussed above, we do not
think that it is necessary to send the matter back
to the District Judge, Raipur for determination of
the jurisdiction as contended by the learned
counsel for the respondent. In our view, relegating
the parties to the District Judge, Raipur to
determine the question of jurisdiction will be
unnecessary and futile exercise.
13. The impugned order is, accordingly, set aside.
Civil Appeal is allowed as above with no order as
to costs.
S.L.P.(Civil) No. 7836 of 2011 &
S.L.P.(Civil) No. 8011 of 2011
Leave granted.
2. For the reasons stated by us while allowing
Civil Appeal No. 8933 of 2014 (arising out of
S.L.P. (Civil) No. 7589 of 2011), B.E.Simoes Von
Staraburg Niedenthal & Anr. Vs. M/S Chattisgarh
Investment Ltd., these Civil Appeals are also
allowed and the impugned order is set aside.
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3. No costs.
........................CJI.
(R.M. LODHA)
..........................J.
(KURIAN JOSEPH)
NEW DELHI; ..........................J.
SEPTEMBER 16, 2014 (ROHINTON FALI NARIMAN)
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ITEM NO.7 COURT NO.1 SECTION IVA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 7589/2011
(Arising out of impugned final judgment and order dated 21/01/2011
in AA No. 02/2011 in CN No. 24-A/2010 passed by the High Court Of
Chhattisgarh At Bilaspur)
B.E.SIMOES VON STARABURG NIEDENTHAL&ANR Petitioner(s)
VERSUS
M/S CHHATTISGARH INVESTMENT LTD. Respondent(s)
(with interim relief and office report)
[FOR FINAL DISPOSAL]
WITH
SLP(C) No. 7836/2011
(With Interim Relief and Office Report)
SLP(C) No. 8011/2011
(With Interim Relief and Office Report)
Date : 16/09/2014 These petitions were called on for hearing
today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s) Mr. Rafiq A. Dada, Sr. Adv.
Mr. Erach H. Kotwal, Adv.
Mr. Kishan Rawat, Adv.
Ms. F.M. Noronha, Adv.
Ms. Ruchika, Adv.
Ms. Neha Malik, Adv.
Mr. Rajan Narain,Adv.
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For Respondent(s) Mr. Nikhilesh Krishnan, Adv.
Mr. Shashi Bhushan, Adv.
Mr. Shantanu Kumar,Adv.
UPON hearing the counsel the Court made the following
O R D E R
S.L.P. (Civil) No. 7589 of 2011 Leave granted.
Civil Appeal is allowed in terms of the signed order.
S.L.P.(Civil) No. 7836 of 2011 & S.L.P.(Civil) No. 8011 of 2011 Leave granted.
In terms of the signed order, for the reasons stated while allowing Civil Appeal No. 8933 of 2014 (arising out of S.L.P. (Civil) No. 7589 of 2011), B.E.Simoes Von Staraburg Niedenthal & Anr. Vs. M/S Chattisgarh Investment Ltd., these Civil Appeals are also allowed.
(RAJESH DHAM) (RENU DIWAN)
COURT MASTER COURT MASTER
(signed order is placed on the file)