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3. The petition under Section 34 of the Arbitration Act had come up for admission first on 4th July, 2008. Notice of the said petition was on that date not issued and the Petitioner was asked to satisfy as to how this court had the territorial jurisdiction to entertain the petition under Section 34 of the Arbitration Act. The Respondent/Applicant was also represented on that date and had argued that it had applied for execution of the Award in this court after first filing the Execution petition in the courts at Ghaziabad, which alone had jurisdiction and after having the Execution transferred to this court. However, on the next date, 23rd July, 2008 when the file of the Execution was called, it transpired that the proceeding which had been filed by the Respondent/Applicant in this court was not Execution of a transferred decree but an application under Section 9 of the Act. Notice of the application under Section 34 of the Act was accordingly issued to the Respondent/Applicant, the Petitioner having got over the impediment of territorial jurisdiction owing to Section 42 of the Act.

4. The Respondent/Applicant has stated it had filed an appeal to the Division Bench of this court against the order dated 23rd July, 2008 but which is stated to have been withdrawn by making a statement that appropriate application will be moved in this court with respect to territorial jurisdiction. Hence, the application under adjudication.

5. The Respondent/Applicant has sought to get over Section 42 of the Arbitration Act by stating that the Respondent/Applicant had in fact, applied for execution of the Award by filing an Execution petition in the courts at Ghaziabad for seeking the transfer of the decree for Execution to this court. Copy of the Execution application and the orders made thereon of issuance of transfer certificate to the Petitioner have been filed alongwith the application. It is further urged that the transferred decree was in fact, received by this court but since till then the time before which the Execution could be applied had not lapsed, application under Section 9 of the Act was filed in this court for interim measures. The said application was registered as OMP No. 332/2008 of this court. The counsel for the Respondent/Applicant has argued that the OMP No. 332/2008 under Section 9 of the Act was filed in pursuance to the transfer of the Execution to Delhi and would thus, not come in the way of the Respondent/Applicant contending that this court has no territorial jurisdiction to entertain the petition under Section 34 of the Act. It is urged that this court is not the court within the meaning of Section 2 (1) (e) of the Act. Reliance is also placed on Section 20 of the Code of Civil Procedure to urge that no part of the cause of action accrued within the jurisdiction of this court. It is argued that Section 42 of the Act does not confer any jurisdiction on this court and in any case since the Execution petition was first filed at Ghaziabad even prior to preferring the application under Section 9 of the Act in this court, as per the provisions of Section 42 of the Arbitration Act also it will be the courts at Ghaziabad only which will have jurisdiction to entertain the application under Section 34 of the Act. Reliance is placed in the application itself on Union of India vs. S.R. Construction Co. and Anr. 144 (2007) DLT 580 and Apparel Export Promotion Council vs. Prabhati Patni, Proprietor Comfort Furnishers and Anr. 125 (2005) DLT 511.

14. I also notice that it has been held in Shiva Carriers v Royal Projects Ltd AIR 2000 Calcutta 138 that the provisions of Section 42 are mandatory and operate as ouster of jurisdiction of all other courts. Similarly, it has been held in ITI Ltd v District Judge Allahabad AIR 1998 Allahabad 313 that the Parliament intended to make only one court whichever is approached earlier as the venue for all the matters connected with Arbitration Agreement.

15. I may also notice that the present is not a case where the Petitioner itself had earlier filed an application under Part I of the Act before this court. In such a situation it may still be open to the opposite party to contend that merely because the Petitioner had on an earlier occasion wrongly invoked the jurisdiction of this court would not entitle it to file subsequent applications in the same court, nothwithstanding objection to the jurisdiction having not been taken earlier in as much as there could be no waiver with respect to territorial jurisdiction as held in Harshad Chiman Lal Modi supra. Here the Respondent/Applicant itself first filed an application under Part I of the Arbitration Act in this court by contending as aforesaid that this court had territorial jurisdiction. The Respondent/Applicant for the purposes of filing an application under Section 9 of the Act was not required to have the decree transferred to this court and the order was not made in execution but in exercise of powers under Section 9 of the Act. It is also significant that the Respondent/Applicant referred to having obtained the transfer of the decree only to avoid technical objection. Thus, the argument of having obtained the transfer of the decree prior to filing Section 9 application, in my opinion is misconceived. S.R. Construction Co. and Apparel Export Promotion Council supra relied upon by the Respondent/Applicant do not advance the case of the Respondent/Applicant. In Apparel Export Promotion Council, the question of jurisdiction had not been adjudicated. On the contrary in the present case, the Respondent/Applicant has already availed benefit of the order under Section 9 of the Act obtained from this court and cannot now be permitted to object to the jurisdiction of this court.