Madhya Pradesh High Court
Mrs. Archana Dekhne vs M/S Tupperware India Pvt. Ltd. Thru. ... on 24 September, 2014
1
Arbitration Case No.3/2014
24.9.2014
Shri Aniruddha Gokhale, learned counsel for the
applicant.
Shri R.S. Chhabra, learned counsel for the respondent.
Heard finally with consent.
1/ This application under Section 11 of the Arbitration and Conciliation Act, 1996 (for short "the Act") has been filed for appointment of the independent arbitrator.
2/ In brief, the case of the applicant is that the parties had entered into a distribution agreement dated 26.9.2006 which was initially for a period of 36 months, but subsequently renewed. The distributorship agreement was suddenly terminated by the respondent, vide communication received by the applicant on 6.12.2013. The applicant had sent notice dated 7.1.2014 for appointment of the arbitrator. Since the independent arbitrator was not appointed within the period specified, therefore, present application has been filed.
3/ The respondent has filed the reply raising the objection that as per the terms of the agreement, the courts at New Delhi have the exclusive jurisdiction in the matter, therefore, the present application under Section 11 of the Act is not maintainable before this Court.
24/ Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the agreement (Annexure A/1) contains the following arbitration clause :-
"29. DISPUTE SETTLEMENT 29.1 All disputes, differences and questions of any nature which at any time arise between the Parties to this Agreement or their respective representatives and assigns or any of them out of the construction of or concerning anything contained in or arising out of this Agreement or as to the rights, duties or liabilities under it of the Parties to it respectively or their respective representatives shall be referred to the Sole Arbitrator under The Arbitration and Conciliation Act, 1996. The Sole Arbitrator shall be appointed by the Managing Director of the Company. The Arbitration proceedings shall be held at New Delhi, India."
5/ The jurisdiction clause in the agreement reads as under :-
"30. JURISDICTION 30.1 Subject to clause 29, the Parties hereby submit to the exclusive jurisdiction of the courts at New Delhi, India."
6/ It is not disputed before this Court that the contract was signed at Delhi and part of cause of action had arisen in Delhi. Since the arbitration clause provides that the arbitration proceedings will be held at New Delhi and in terms of the jurisdiction clause, the parties had submitted to the 3 exclusive jurisdiction of the courts at New Delhi, therefore, by agreement the parties had excluded the jurisdiction of this Court and had agreed for the jurisdiction to the courts at New Delhi, where also a part of cause of action has arisen.
7/ The Supreme Court in the matter of Swastik Gases Private Limited Vs. Indian Oil Corporation Limited, reported in 2013(9) SCC 32 while considering the similar issue has held that :-
"31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, the Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of Clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of Clause 18 of the agreement, the jurisdiction of the Chief Justice of the Rajasthan High Court has been excluded?
32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a 4 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 that exclusion of 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 not it is against the public policy. It does not offend Section 28 of the Contract Act in any manner."
8/ In the concurring judgment, Hon'ble Justice Madan B. Lokur has expressed that :-
"55. It will be seen from the above decisions that except in A.B.C. laminart where this Court declined to exclude the jurisdiction 5 of the courts in Salem, in all other similar cases and inference was drawn (explicitly or implicitly) that the parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words "only", "alone" or "exclusively" and like. The reason for this is quite obvious. The parties would not have included the ouster clause in their agreement were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of courts other than those mentioned in the clause concerned. Conversely, if the parties had intended that all courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties.
57. For the reasons mentioned above, I agree with my learned Brother that in the jurisdiction clause of an agreement, the absence of words like "alone", "only", "exclusively" or "exclusive jurisdiction" is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes that intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the courts in Kolkata had jurisdiction to entertain the disputes between the parties."
9/ In the present case in the jurisdiction clause 30 the parties by agreement have given exclusive jurisdiction to 6 the courts at New Delhi. the intention of the parties to exclude the jurisdiction of all other courts except the courts at New Delhi, is very clear.
10/ Counsel for the applicant has referred to Section 2(1)(e) of the Act in support of his plea relating to the meaning of the word "Court" and has placed reliance upon the judgment of the Delhi High Court in the matter of International Breweries Pvt. Ltd. Vs. Mohan Meakins Ltd. and Anr., reported in 153(2008) DLT 399, but the Supreme Court in the matter of Swastik Gases Pvt. Ltd. (supra) has duly considered Section 2(1)(e) of the Act while holding contrary to what has been submitted by the applicant before this Court.
11/ In view of the aforesaid, I am of the opinion that parties by their agreement have excluded the jurisdiction of this Court as also all other courts except the courts at New Delhi, therefore, the present application under Section 11 of the Act is not maintainable before this Court.
12/ The application is, therefore, rejected with liberty to the applicant to file it before the appropriate Court.
C.C. as per rules.
(Prakash Shrivastava) Judge trilok