Calcutta High Court
Mintech Global Pvt. Ltd vs Kesoram Industries Limited on 16 January, 2020
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
OD-5
GA 61 of 2020
With
RVWO 1 of 2020
AP 623 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
MINTECH GLOBAL PVT. LTD
Versus
KESORAM INDUSTRIES LIMITED
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 16th January, 2020.
Appearance:
Mr. Pradeep Sancheti, Adv.
Mr. Biswaroop Mukherjee, Adv.
...for the petitioner.
Mr. Hirak Mitra, Sr. Adv.
Ms. Suchismita Ghosh Chatterjee, Adv.
...for the respondent.
The Court : This is an application for review of the order dated November 20, 2019 passed by this Court in AP No.623 of 2019. The applicant is the claimant in the arbitral proceeding held by the Arbitral Tribunal. There is no dispute with regard to the existence of the arbitration agreement between the parties contemplating that the sittings of the arbitration shall be held in Kolkata. As contemplated in the arbitration agreement the arbitral sittings are being held by the Arbitral Tribunal in Kolkata, within the jurisdiction of this Court. 2
The respondent in the arbitral proceeding filed an application, AP No.623 of 2019 before this Court under Section 29- A of the Arbitration & Conciliation Act, 1996 (in short, "the Act of 1996") praying for, extension of time to make and publish the award by the Arbitral Tribunal. A copy of the said application was served upon the claimant, the applicant herein.
On November 20, 2019 when the application, AP No.623 of 2019 was taken up for hearing, the present applicant agreed that the time to make the award by the Arbitral Tribunal was to be extended. But it raised an objection with regard to the jurisdiction of this Court to entertain the said application. However, in view of the fact that the parties had agreed that the arbitral sittings shall be held in Kolkata and the Arbitral Tribunal has been holding the sittings in Kolkata, on the strength of the decision of the Supreme Court in the case of Brahmani River Pellets Limited -versus- Kamachi Industries Limited reported in 2019 SCC OnLine SC 929 this Court repelled the said objection raised by the present applicant. Thus, by order dated November 20, 2019 this Court allowed the said application, A.P. No.623 of 2019 and extended the time to make and publish the award by the Arbitral Tribunal.
The applicant has now filed this application for review of the said order dated November 20, 2019. One of the grounds urged by the applicant for review of the said order dated November 20, 2019 application is that this Court failed to consider the 3 judgment of the Supreme Court in the case of Indus Mobile Distribution Private Limited -versus- Datawind Innovations Private Limited & Ors. reported in (2017) 7 SCC 678.
The other ground urged by the applicant is that as on the date of passing of the said order dated November 20, 2019 an application filed by it under Section 29-A of the Act of 1996 was already pending before the Commercial Court of City Civil Court at Hyderabad and, as such, in view of the provision of Section 42 of the Act of 1996, this Court lacked the jurisdiction to entertain the application, AP No.623 of 2019.
However, a strong objection has been raised on behalf of the respondent to the maintainability of the present application. It is submitted that the applicant has suppressed the material fact that it had challenged the said order dated November 20, 2019 passed by this Court before the Hon'ble Supreme Court and in view of the decision of the Supreme Court in the case of BGS SGS Soma - versus- NHPC Limited reported in 2019 SCC OnLine SC 1585 the said Special Leave Petition was withdrawn. On the strength of the decision of the Supreme Court in the case of BGS SGS Soma -versus- NHPC Limited reported in 2019 SCC OnLine SC 1585 the present respondent submitted that in this case when the arbitration agreement between the parties stipulates that the Arbitral Tribunal shall hold the sittings at Kolkata the Commercial Court of City Civil Court at Hyderabad lacked the jurisdiction to entertain any application under Section 29A of the Act of 1996 and 4 as such, the order dated November 20, 2019 passed by this Court suffers from no infirmity of law. The present respondent pressed for dismissal of the review application.
I have considered the facts of the case. The applicant could not dispute the existence of the arbitration agreement between the parties contemplating that the Arbitral Tribunal shall hold the sittings of the arbitral proceeding in Kolkata and in fact, the Arbitral Tribunal in holding the arbitral sittings within the jurisdiction of this Court. Therefore, in view of the decision of the Supreme Court in the case of Indus Mobile Distribution Private Limited (supra) which decision was also subsequently followed by the Supreme Court in the case of Brahmani River Pellets Limited - vs- Kamachi Industries Limited, reported in 2019 SCC Online SC 929, this court alone has the jurisdiction to entertain all applications relating to arbitral proceeding between the parties. Even, in the case of BGS SGS Soma (supra) the Three Judge Bench of the Supreme Court once again held that whenever there is a designated place of arbitration in an arbitration clause the Court having jurisdiction over such designated place shall alone have the jurisdiction to entertain any application relating to the said arbitral proceeding. Therefore, the respondent is correct in contending that in the facts of the present case, the Commercial Court of City Civil Court at Hyderabad lacked jurisdiction to entertain the application under Section 29-A of the Act of 1996 filed by the present applicant. Therefore, Section 42 of the Act 5 of 1996 was not applicable in this case preventing this Court entertaining and allowing the said application, A.P. No.623 of 2019.
For the reasons as aforesaid there is no merit in this review application and the same stands dismissed with costs assessed at Rs.30,000/- (Rupees Thirty Thousand only) to be paid by the applicant to the West Bengal State Legal Services Authority within two weeks from date.
Let the application appear in the list, under the heading 'To Be Mentioned', on February 4, 2020 to ascertain if the applicant in the meantime has complied with the direction for payment of costs.
(ASHIS KUMAR CHAKRABORTY, J.) s.pal