Gauhati High Court
M/S Rhino Bamboo Industry vs The Union Of India & 3 Ors on 29 August, 2018
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Arbitration Petition 7/2013
M/s Rhino Bamboo Industry,
(A unit of Ambika Service Station Co. Pvt. Ltd.)
A company within the meaning of the company's Act, 1956 having its
registered office at R.G. Baruah Road, Guwahati-781024,
Represented by its Managing Director Sri Rajib Goswami,
Resident of House No. 23, K.K. Bhatta Road, Chenikuthi,
Guwahati-781003, Kamrup, Assam.
- Petitioner
-Versus-
1. The Union of India,
Through the Secretary,
Department of Science and Technology,
Technology Bhawan, New Mehrauli Road,
New Delhi-110016.
2. Technology Information Forecasting and Assessment Council,
A society registered under the Societies Registration Act, 1860,
Having its registered office at 'A' Wing, Vishwakarma Bhawan,
Sahid Jeet Singh Marg, New Delhi-110016,
Represented by Registrar cum Chief (Finance and Administration).
3. National Mission on Bamboo application (NMBA),
2nd Floor Vishwakarma Bhawan,
Sahid Jeet Singh Marg, New Delhi-110016.
4. Registrar,
National Mission on Bamboo application (NMBA),
2nd Floor Vishwakarma Bhawan,
Sahid Jeet Singh Marg, New Delhi-110016.
- Respondents
For the petitioner : Mr. S. S. Dey, Senior Advocate,
Ms. T. Barkataki, Advocate,
For respondent Nos. 1 and 2 : Mr. H. Gupta,
Central Government Advocate,
For respondent Nos. 3 and 4 : Mr. S. Baruah, Advocate,
Date of hearing and order : 29.08.2017
BEFORE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
JUDGEMENT AND ORDER
(ORAL)
Heard Mr. S. S. Dey, learned Senior counsel, appearing for the petitioner. Also heard Mr. H. Gupta, learned Central Government counsel, appearing for respondent Nos.
Arb. P. 7/2013 21 and 2 as well as Mr. S. Baruah, learned counsel, appearing for respondent Nos. 3 and 4.
2. By this application under Section 11 of the Arbitration and Conciliation Act, 1996, the petitioner prays for appointment of an arbitrator for resolution of the dispute raised by the petitioner by a letter dated 23.03.2013 in terms of Clause XV of the agreement dated 22.03.2007. Clause XV of the agreement in question reads as follows:
"XV. ARBITRATION AND JURISDICTION a. If any dispute or difference arises between the parties hereto as to the construction, interpretation, effect and implication of any provision of this Agreement including the rights or liabilities of any claim or demand of any party against other or in regard to any matter under these presents but excluding any matters, decisions of determination of which is expressly provided for in this Agreement, such disputes or differences shall be referred to the sole arbitration of the Secretary, Department of Science & Technology, Government of India, or that of his nominee and his decision will be final and shall be binding on all the parties. A reference to the arbitration under this Clause shall be deemed to be submission within the meaning of the Arbitration Act, 1940, and the rules framed there under for the time being in force.
b. If the "COMPANY' does not make any claim or demand or raise any dispute or difference in terms of Sub Clause "a" of this Clause within six months from the date on which such claim or demand arises, the 'COMPANY' shall deem to have waived and abandoned such claim or demand or the right to raise such dispute or difference against 'TIFAC'.
c. The venue of the Arbitration shall be at Delhi.
d. The parties hereby agree to consent to the extension of time for making the award by the Sole Arbitrator, if the sole arbitrator so requires. e. Each party shall bear and pay its own cost of the arbitration proceedings unless the arbitrator otherwise decides in the award.
The provision of this clause shall not be frustrated, abrogated or become inoperative, notwithstanding this Agreement expires or ceases to exist or is terminated or revoked or declared unlawful.Arb. P. 7/2013 3
The Courts at Delhi shall have exclusive jurisdiction in all matters concerning this Agreement, including any matter arising out of the arbitration proceedings or any award made therein." (Emphasis supplied by me)
3. The respondent Nos. 3 and 4 in their affidavit do not dispute that an arbitral dispute had arisen.
4. Mr. Dey has submitted that having regard to the clause of arbitration as embodied in Clause XV, this Court will have jurisdiction to entertain and decide the instant application as part of cause of action has arisen in the State of Assam.
5. Mr. Gupta has submitted that there is no doubt that an arbitrable dispute has arisen between the parties. But he contends that this Court does not have jurisdiction to entertain this application for appointment of an arbitrator as the Courts at Delhi has exclusive jurisdiction in terms of Clause XV of the agrement. In order to buttress his argument, Mr. Gupta has placed reliance on the judgement of the Supreme Court in the case of Swastik Gases Private Limited vs. Indian Oil Corporation Limited, reported in (2013) 9 SCC 32.
6. Mr. Baruah has endorsed the aforesaid submission of Mr. Gupta.
7. Having regard to the contours of the controversy between the parties, a detailed narration of the facts is not considered necessary. The only question that calls for adjudication in this application is whether, in view of Clause XV of the agreement between the parties, this Court will have jurisdiction to entertain this application.
8. A perusal of Clause XV would go to show that the courts at Delhi shall have exclusive jurisdiction in all matters concerning the agreement in question.
9. In A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem, reported in (1989) 2 SCC 163, which is also referred to in Swastik Gases Private Limited (supra), the Supreme Court was seized of a particular Clause, being Clause 11 of the agreement in question. Clause 11 reads as follows: "Any dispute arising out of this sale shall be subject to Kaira jurisdiction." The dispute having arisen out of the contract between the parties, the plaintiff had filed a suit for recovery of certain amount of money and had also claimed damages in the Court at Salem. A preliminary objection was raised that the Salem Court had no jurisdiction to entertain the suit as the parties by express contract had agreed to confer exclusive jurisdiction in regard to all disputes arising out of the contract on the civil Court at Kaira. One of the questions that had fallen for consideration before the Supreme Court was whether the court at Salem had jurisdiction to entertain or try the Arb. P. 7/2013 4 suit and while dealing with the said question, the Supreme Court had observed that the jurisdiction of the court in matter of contract will depend on the situs of the contract and the cause of action arising through connecting factors. In paragraph 21, it was observed as follows:
"21. ..............When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only ', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius'-- expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed."
10. At paragraph 32 of Swastik Gases Private Limited (supra), it was held as follows:
"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 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 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 Arb. P. 7/2013 5 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."
11. In the instant case, it is specifically mentioned in Clause XV of the agreement that the courts at Delhi shall have "exclusive" jurisdiction in all matters concerning the agreement in question including any matter arising out of the arbitration proceeding or any award made therein. The intention of the parties is clear and unambiguous. The question as to whether a part of cause of action has arisen within the jurisdiction of this Court is wholly immaterial when the parties had agreed that the Courts at Delhi will have exclusive jurisdiction. Therefore, there is no escape from the conclusion that this Court lacks jurisdiction to entertain this application.
12. Taking that view, this Arbitration Petition is dismissed.
JUDGE RK Arb. P. 7/2013